initiate an arbitration process under Chapter 19 of NAFTA or they could lead to a
submission with the Free Trade Commission under Chapter 20. As mentioned above,
NAFTA also permits a private corporation to bring a direct claim if that corporation
believes that a domestic environmental law resulted in the expropriation of the
corporation’s investment. The corporation can force a government into binding
arbitration without need of approval by any national government or international council.
The resolution of these claims can result in the imposition and/or recession of hundred of
millions of dollars of duties and tariffs. In the case of NAAEC the agreement itself
contains virtually no remedies or sanctions. Kibel stresses that to date no single claim has
been filed alleging non-enforcement under NAAEC (Article 24) and Article 14 does not
provide for sanctions. “In the case of NAAEC, however, private environmental
organizations are denied the rights and remedies afforded to private corporations under
NAFTA. Unlike private corporations under NAFTA, private environmental groups under
the NAAEC must secure approval of two-thirds of the NACEC’s Council of Ministers
before and Article 14 can proceed. Unlike private corporations under NAFTA, private
environmental organizations under the NAAEC cannot force national governments into
binding arbitration. In comparing NAFTA and the NAAEC, it becomes clear that not all
North American law is treated equally. North American trade law is treated as binding
and enforceable, whereas North America environmental law is treated as non-binding and
aspirational” (Kibel 2000, p. 91).
Final Reflections
NAFTA’s green label is questionable. Expectation that the environmental
provisions in NAFTA, the NAAEC, and the creation of the NACEC would lead to a
19
Convention