Environmental Side Agreement Research Articles

Environmental issue linkage as an electoral advantage: the case of NAFTA

Why would some legislators alter their votes on trade agreements in return for environmental side agreements that may be hard to enforce? While numerous studies have examined the effects of side agreements, few have evaluated their impact on legislators’ positions on a trade agreement over time. This paper examines the effects of the environmental side deal attached to NAFTA, with novel time-series survey data that captures the evolution of House members’ positions on NAFTA during discussion and finalization of the environmental side of the free trade agreement. I find that pro-environmental legislators in safe districts tended to withdraw their support for NAFTA once the side deal was agreed upon, whereas those in competitive districts stood their ground and increased their support in the final stage of voting. Contrary to the conventional wisdom, I find little evidence that the side deal assuaged legislators in import-competing districts. This article shows how the effectiveness of international institutions is moderated in important ways by electoral considerations.

Ethiopia’s Bilateral Investment Treaties and Environmental Protection; The Need of Re-Negotiation for Corporate Responsibility

AbstractThis article argues that the bulk of the bilateral investment treaties (BITs) that Ethiopia has ever concluded, to regulate its bilateral foreign investment relations, don’t contain an environmental provision that require investing corporations to discharge responsibility towards environment and there is a pressing call for either to re-negotiate, update or engage in concluding of environmental side agreements (ESA). To substantiate the argument the trends of BIT making is assessed, the status of Ethiopian BITs have been evaluated through content analysis, environmental responsibility of Ethiopia has been examined both from domestic and international perspective, relevant reasons for the regulation of environment in foreign investment through BIT have been discussed and justifications for the need to renegotiate, update or make ESA in Ethiopia have been highlighted.

Mecanismo participativo de la Comisión Internacional de Límites y Aguas: retos de gobernanza para la seguridad hídrica

En este trabajo se analizan las características, principios y funcionamiento del instrumento de participación ciudadana implementado por la Comisión Internacional de Límites y Aguas (CILA) en la frontera México-Estados Unidos y se contrasta con otros esquemas similares relacionados con la gestión de aguas transfronterizas. A partir de las perspectivas de participación social, gobernanza del agua y seguridad hídrica se revisa el caso de los Foros Ciudadanos de la CILA, específicamente el que se estableció para la región Mexicali y San Luis Río Colorado, a efecto de abordar los temas concernientes al río Colorado. Se observa la existencia de mecanismos participativos establecidos incluso antes de la firma de los acuerdos paralelos del Tratado de Libre Comercio de América del Norte y cómo éstos tienen el potencial para trasladar las enseñanzas para el involucramiento de comunidades locales en los proyectos sobre agua. El estudio demuestra la existencia de una participación ciudadana activa, apoyada por una normatividad coherente con una estrategia de gobernanza, que sin embargo encuentra su obstáculo mayor entre aquellos entes que debieran estar promoviéndola y garantizándola. Finalmente se sugiere trasladar las experiencias positivas a efecto de mejorar la gestión participativa del agua en la región.

Labour Provisions in US Free Trade Agreements: Experiences and Challenges

CC: The US has a somewhat unique approach to promoting labour rights through free trade agreements. What has been the AFL-CIO’s experience with these agreements and with the US Trade Representative (USTR)? Lee: This started with the Generalised System of Preferences [GSP], which is our unilateral benefits programme for developing countries. Congress in the 1980s inserted language around internationally recognised workers’ rights as one of the many conditions for developing countries to be eligible for GSP for lower tariffs on certain products. The idea was tying access to the US market to adherence to internationally recognised workers’ rights and conditions of work. NAFTA [the North American Free Trade Agreement] was the first time in the context of a bilateral or regional trade agreement, that we tried to go another step, to say that countries that voluntarily enter into a trade agreement with the US should also be willing to make commitments with respect to workers’ rights. NAFTA was a very ambitious, intrusive concept of trade agreement where things like intellectual property rights, financial services, and investment rules were all considered fair game. And that opened up the idea for us to say shouldn’t we be able to also protect basic labour and environmental standards, to try to have some sort of counterweight to the corporate benefits and privileges that the big business lobby in the US was insisting be included. So in some ways it was a defensive mechanism, but it also allowed us to talk about workers’ rights, in a way that – in our view – was not protectionist but was a way of making a partnership with unions and workers in developing countries and our trading partners. The NAFTA labour and environmental side agreements were disappointing on a number of fronts. But it was a foot in the door and since that time, almost twenty-five years ago, we have progressively tried to use each national debate around a new trade agreement to move the ball forward. We had forward progress with the Jordan agreement at the end of the Clinton administration, which did include enforceable core ILO labour standards in the core text, subject to the same dispute settlement in principle as the other commitments in the agreement. It had its weaknesses, but that was a major step forward… But then we had eight years of back-sliding during the George W. Bush administration, where the commitments were weakened and watered down, in CAFTA [the Central America FTA]1, Chile, Singapore, Australia, Bahrain, Morocco, Oman. At the very end of the Bush administration in May 2007, the Democrats took a majority in the House of Representatives and used their bargaining power to insist that in the last batch of trade agreements in the Bush years – Korea, Colombia, Panama and Peru – that much stronger labour and environment provisions be included. CC: The US-Guatemala complaint under CAFTA is the only labour case to progress to arbitration as yet. What lessons can be learned from the case? Drake: We filed that with six Guatemalan unions in 2008, so the agreement actually goes back to the Bush administration. And the CAFTA standard was essentially ‘enforce your own laws’. It gave a nod to the ILO Declaration but that was specifically unenforceable. The complaint was accepted fairly timely, it was actually accepted by the Bush administration the day before Obama’s inauguration and then it sat and sat and sat for years. Finally in 2015 they actually went to Dispute Settlement. And now it has been nearly two years since the panel heard it. We understand that there is a decision out there and that the US government and the Guatemalan government have responded to it and we’re waiting for publication. But assuming that the US would win – which I think is questionable now given this long delay – the strongest penalty that could result is a fine paid by the government of Guatemala, which is essentially a fine paid to itself, because the fine then goes into a fund which is then used to remedy the problem of failing to effectively enforce its laws. So when you say it’s enforceable by sanctions, well, that’s an awful...

Mark Aspinwall. 2013. Side Effects: Mexican Governance under NAFTA's Labor and Environmental Side Agreements . Palo Alto: Stanford University. 232 pp. $24.95, Paperback.

Latin American PolicyVolume 7, Issue 2 p. 434-437 Review Essays Mark Aspinwall. 2013. Side Effects: Mexican Governance under NAFTA's Labor and Environmental Side Agreements. Palo Alto: Stanford University. 232 pp. $24.95, Paperback. Carol Wise, Carol WiseSearch for more papers by this author Carol Wise, Carol WiseSearch for more papers by this author First published: 29 November 2016 https://doi.org/10.1111/lamp.12100Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume7, Issue2December 2016Pages 434-437 RelatedInformation

Trade and the environment with pre-existing subsidies: A dynamic general equilibrium analysis

Countries that wish to erect trade barriers have a variety of instruments at their disposal. In addition to tariffs and quotas, countries can offer tax relief, low interest financing, reduced regulation, and other subsidies to domestic industries facing foreign competition. In a trade agreement, countries typically agree to reduce not only tariffs but also subsidies. We consider the effect of a free trade agreement on pollution emissions. We show that while reducing tariffs may indeed increase output and pollution, reductions in some subsides required by the trade agreement reduce pollution in general equilibrium for reasonable parameter values. Reducing subsidies has three effects on pollution: (1) reducing subsidies to firms reduces pollution-causing capital accumulation, (2) if subsidized firms are more pollution intensive, then reducing subsides moves capital and labor from more to less pollution intensive firms, and (3) reducing subsidies concentrates production in more productive firms, increasing output and thus pollution. We derive straightforward conditions for which (1) and (2) outweigh (3). We then calibrate the model to China in 1997, and find that pollution has a more elastic response to reducing subsidies than to reducing tariffs. While a 5% reduction in tariffs increases all pollutants by approximately 1%, a 5% reduction in subsidies reduces pollution by 1.8–11.6%, depending on the pollutant. The reductions in pollution occur without any environmental side agreements or abatement policy changes.

How Environmentalists “Greened” Trade Policy: Strategic Action and the Architecture of Field Overlap

This article examines why and how environmental activists, despite considerable political weakness and disproportionally few resources, won substantive negotiating concessions that far outstripped labor achievements during NAFTA's negotiation. Despite a trade policy arena hostile to their demands, environmentalists gained official recognition for the legitimacy of their claims, obtained a seat at the negotiating table, turned a previously technocratic concern into a highly visible populist issue, and won an environmental side agreement stronger than its labor counterpart. We argue that this unexpected outcome is best explained by environmentalists' strategic use of mechanisms available at the intersection of multiple fields. While field theory mainly focuses on interactions within a particular field, we suggest that the structure of overlap between fields—the architecture of field overlap—creates unique points of leverage that render particular targets more vulnerable and certain strategies more effective for activists. We outline the mechanisms associated with the structure of field overlap—alliance brokerage, rulemaking, resource brokerage, and frame adaptation-that enable activists to strategically leverage advantages across fields to transform the political landscape.

Transboundary environmental impact assessment as part of the North American Agreement on Environmental Cooperation

The North American Agreement on Environmental Cooperation (NAAEC), the environmental side agreement to the North American Free Trade Agreement (NAFTA), was adopted in 1993 as an unprecedented response to growing environmental concerns about liberalized trade. The NAAEC created the Commission for Environmental Cooperation (CEC) and established a broad framework for North American environmental cooperation. NAAEC Article 10(7) called for the NAFTA governments to work toward an agreement on transboundary environmental impact assessment (TEIA). Negotiation of a TEIA agreement among the NAFTA partners, only one of which (the USA) shares a border with the others, involved significant challenges, including differences among the domestic EIA legislation and policy regimes of Canada, Mexico and the USA. Fifteen years later, these challenges have so far prevented completion of a TEIA agreement. A clearer role for the CEC in supporting and facilitating negotiation of a TEIA agreement, and in supporting it once adopted, could help overcome these challenges.

NAFTA Chapter 11: “Tantamount to Expropriation”: Tantamount to Explosive

This article provides a solution to the concerns that NAFTA is not currently able to protect Foreign Direct Investment while safeguarding the environment. Concerns, NAFTA provisions, and potential solutions to the conflict are discussed as follows. A. Why Protection Is Needed for Foreign Direct Investment (FDI) • The upside and the downside of FDI B. How NAFTA Protects FDI • Article 1110: Expropriation and Compensation • The Investor-State Dispute Mechanism C. How NAFTA Protects the Environment • Chapter 11, The Preamble, and the Environmental Side Agreement D. Concerns about NAFTA Protection E. How Are the NAFTA Tribunals Doing? F. Can NAFTA Protect Both Investor and Environment? G. Good, Better and Best Solutions to the FDI-Environment Conflict • NAFTA Choice #1: Do Nothing • NAFTA Choice #2: Exemption • NAFTA Choice #3: Remove the “Tantamount to Expropriation” Clause • NAFTA Choice #4: Follow the US Law of Regulatory Taking • NAFTA's Best Choice: Extrinsic Interpretive Guidance

The Challenge of Treaty Structure: The Case of NAFTA and the Environment

My remarks will focus on the challenge that treaty structure poses addressing the tension between trade, investment, and environment. The question I ask is whether trade, investment, and environment are closed boxes not only each other, but also non-state participants, especially members of civil society. I will use the NAFTA Environmental Side Agreement (1) illustrate this issue. My main point is that treaty structure creates biases in how trade and environment issues are resolved. With treaty structure I refer the design of treaties either primarily as contractual arrangements or more like public regulatory regimes. Trade treaties tend resemble the former, while environmental agreements are being configured increasingly resemble the latter. By their design, public regulatory regimes tend be better at promoting civil society involvement and vindicating public values than contractual arrangements. A BRIEF OVERVIEW OF THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION AND ITS CITIZEN SUBMISSIONS PROCESS The environmental side agreement was intended promote environmental cooperation and ensure that NAFTA states would not regress in their environmental protection efforts because of increased competitive pressures. Under the side agreement, the parties are required ensure high levels of environmental protection (2) and their environmental (3) The agreement also contains citizen submission process through which anybody, including private individuals, EGOs, and corporations, can complain about NAFTA party's failure to effectively enforce its environmental law. The submissions process is well-known, and I will skip the details. In broad outline, there are five basic steps: (1) petition or submission the Commission for Environmental Cooperation alleging failure effectively enforce environmental laws; (2) review and decision by the secretariat that the submission is essentially non-frivolous, and request for response from the target state; (3) decision by the Council, made up of the environmental ministers of the NAFTA countries, on whether develop factual record; (4) Commission preparation of factual record, which may take from months years; (5) Council vote on whether release the final report the public; two-thirds majority vote is required for public release. At this point, the process has run its course. There is no substantive remedy at the end. The outcome is report documenting the facts underlying the enforcement failure allegations. The side agreement, however, does contain bilateral dispute settlement process in Part V. The standard for triggering that process is that country must have engaged in a persistent pattern of failure ... effectively enforce its environmental law. (4) The standard is thus higher than for triggering of factual records. Theoretically, however, the Article 14 factual records could provide the factual predicates for such dispute settlement proceeding. To date, the Secretariat has received fifty-three submissions; eleven are pending, and another eleven have resulted in factual records. The rest never made it the factual record stage. There have been no Part V proceedings. THE IMPORTANCE OF STRUCTURE; THE CHALLENGE OF CONTRACT FOR PROMOTING PRIVATE AND PUBLIC VALUES Why is treaty structure important? Structure creates biases in how issues are resolved. Contractual arrangements are fundamentally designed advance individual, private interests the extent that they are mutually compatible. In contrast, public regulatory regimes are designed promote public norms and shared values. The result is bias of treaty outcomes toward private or public values depending on the structure of the treaty. For trade agreements, which are largely based on the contract model, outcomes are biased against public values like environmental quality and toward private interests. …

The Effectiveness of the NAFTA Environmental Side Agreement's Citizen Submission Process: A Case Study of the Metales y Derivados Matter

Among the most visible features of the North American Agreement for Environmental Cooperation, commonly referred to as the NAFTA Environmental Side Agreement, has been its citizen submission process. The submissions process allows private individuals to trigger an official international investigation into a NAFTA government's failure to effectively enforce its environmental laws. It remains one of the most advanced institutional mechanisms aimed at addressing international environmental issues related to trade liberalization. Some commentators have been optimistic about its usefulness. However, an examination of one of the more recently published factual records, the Metales y Derivados matter, paints a more mixed picture. Metales y Derivados is a former battery and lead waste recycling facility located in Tijuana, Mexico that was abandoned by its U.S. owner. For years, the poor and working-class neighboring community complained about pervasive environmental violations by the facility. When Mexican environmental officials finally instituted criminal enforcement proceedings, the owner fled across the border to the U.S. rather than face charges in Mexico. Left behind were thousands of tons of wastes and contaminated soil containing lead and other heavy metals. To this day, years after the facility was first abandoned and after the publication of a factual record detailing the enforcement failures of the Mexican government, little has changed. The piles of lead slag and barrels and sacks of waste still sit at the plant, and the toxic waste remains uncontrolled. This article examines the Metales matter as a case study of the effectiveness of the citizen submission process and the implications for environmental governance more broadly. The first part of the article outlines the events that led to the filing of the citizen submission, the handling of the submission by the CEC, and the aftermath. Part two examines claims of success and failures of the process, especially with respect to promoting transparency and accountability. My conclusion is that while the case can be seen as a success in promoting openness and increasing public knowledge about governmental processes, it must, at present, also be considered a failure in bringing about substantive environmental improvements, enhancing enforcement activities, and improving public participation in environmental governance. The third part of the article locates the reasons for the Metales failures at three levels: failures of 1) international governance, 2) national regulation, and 3) market and social mechanisms. The failures are rooted in the nature of international organizations, including the difficulty of enforcing the international obligations under the NAAEC, the political economy of the border region, and the failure of social institutions and markets. The fourth and final part addresses the lessons for improving environmental governance at the border and the effectiveness of the citizen submissions process. In particular, the articles suggests a set of reforms to the submissions process that will make it more autonomous from control by the Council and the NAAEC parties. To address substantive issues of environmental governance, especially political accountability, at the border, the article proposes the creation of a binational border environmental quality district with a commission that is directly elected and accountable to border residents. Ultimately, Metales is not only a cautionary tale about the effectiveness of the citizen submission process. Understanding its implications also yields broader insights into the role of civil society involvement in efforts to monitor and enforce state compliance with international environmental agreements as well as the relevance of North-South equity and environmental justice issues.

Environmental Duties and International Harmonization of Standards

Demands by domestic industries for protection from foreign competition aided by lower standards have led to proposals to set trade barriers conditional on the environmental policies of other countries. This article shows that the threat of such environmental duties can assist in achieving global efficiency when countries cannot commit to a negotiated environmental standard. In addition, this article shows that, in a repeated game framework, the enforcement of a free-trade agreement may require some convergence in environmental standards across countries when trade is driven by differences in such standards. However, it is also shown that it is more efficient to enforce a trade agreement by setting tariffs to partially offset differences in policy standards than to attempt to harmonize standards within environmental side agreements.

Environmental Duties and International Harmonization of Standards

Demands by domestic industries for protection from foreign competition aided by lower standards have led to proposals to set trade barriers conditional on the environmental policies of other countries. This article shows that the threat of such environmental duties can assist in achieving global efficiency when countries cannot commit to a negotiated environmental standard. In addition, this article shows that, in a repeated game framework, the enforcement of a free‐trade agreement may require some convergence in environmental standards across countries when trade is driven by differences in such standards. However, it is also shown that it is more efficient to enforce a trade agreement by setting tariffs to partially offset differences in policy standards than to attempt to harmonize standards within environmental side agreements.

Corporate silence: environmental disclosure and the north american free trade agreement

This paper uses the highly politicized passage of the North American Free Trade Agreement (NAFTA) and its environmental side agreement as a venue to explore the nature of accountability and environmental disclosure. The components of accountability (account-giver, relationships, power and conduct that matters) are outlined. While notions of accountability would lead us to expect a modicum of relevant disclosure, the empirical results are otherwise. Environmental disclosure was drawn from the database, Disclosure, for US and Canadian companies for year ends covering the period 1990 to 1995. Only nine references to the effect of NAFTA on the ecological environment were found. The conclusion is reached that managers and companies do not see themselves as accountable for or liable to speak about their environmental performance in connection with NAFTA. Aspects of power and accountability are discussed and a few comments are offered on a way forward.

An environmental agenda for APEC: Lessons from NAFTA

AbstractThe Asia Pacific Economic Cooperation (APEC) forum has been slow to deal with trade and the environment issues. In contrast, the North American Free Trade Agreement (NAFTA) and its environmental side agreement incorporate extensive environmental provisions and institutions in its framework. APEC could usefully build upon the NAFTA experience.

NAFTA Spurs First Toxics Inventory Report

Under the provisions of the North American Free Trade Agreement (NAFTA), the first attempt at a continentwide pollutant release and transfer registry has been prepared. The report compares chemical releases and transfers from the U.S., Canada, and Mexico, and it greatly resembles the U.S. Toxics Release Inventory (TRI). NAFTA is the 1993 trade accord reached between the U.S., Canada, and Mexico to create a free-trade zone throughout North America. In addition to trade issues, however, NAFTA includes a specific side agreement for improvement of the environmental condition of the continent. It is under this part of NAFTA that the pollutant inventory was prepared. The report is done by the Commission for Environmental Cooperation (CEC), an organization created under the North American Agreement for Environmental Cooperation, the environmental side agreement of NAFTA. CEC is supposed to prevent trade and environmental conflicts between NAFTA partners and promote enforcement of environmental laws. It is also c...

EMERGING LATIN AMERICAN OIL SPILL REGULATION

ABSTRACT Environmental regulation in Latin America is currently undergoing radical change. In response to an increase in environmental awareness, internal pressures (including privatization of state-owned monopolies), and external standards (such as those of the North American Free Trade Agreement [NAFTA] Environmental Side Agreement and ISO 14000), a large number of Latin American countries have passed or will soon pass new environmental legislation. Although much of this legislation aims to develop or strengthen the general environmental frameworks of these countries, there are many emerging Latin American regulations and initiatives that deal specifically with oil spill prevention, preparedness, and response. As a first step toward understanding the impacts that these oil spill regulations and initiatives will have for individual Latin American countries and the region, this paper seeks to identify and explore the current forces driving the increase in oil spill regulation in Latin America; examine some new oil spill regulatory initiatives taking place in individual countries, including Venezuela, Brazil, Colombia, Peru, Argentina, and Bolivia; review relevant international treaties and regional initiatives; and discuss anticipated future trends for the region as a whole.

Agriculture, trade, and the environment: discovering and measuring the critical linkages

Introduction Introduction (Maury E. Bredahl, Nicole Ballenger, and John C. Dunmore. ) Discovering The Critical Linkages: Trade, International Institutions And The Environment Trade and the Environment: Exploring the Critical Linkages (Jagdish Bhagwati. ) Trade and Environment: A Tale of Two Paradigms (Howard Gruenspecht. ) GATT From the Trenches (Amb. Michael B. Smith. ) Competitiveness, Harmonization, and the Global Ecolonomy (Steve Charnovitz. ) Environmental Side Agreements: Will They Take Center Stage? (N. Ballenger and Barry Krissoff. ) Discovering The Critical Linkages: Trade, Renewable Resources And International Environmental Goods International Dimensions of Environmental Policy (G. M. Heal. ) Property Rights and the Dynamics of North-South Trade (Graciela Chichilnisky. ) Environment, Welfare and Gains from Trade: A North-South Model in General Equilibrium (Xinshen Diao and Terry L. Roe. ) Quantifying Trade and Environment Linkages Through Economywide Modeling (John Whalley. ) Measuring The Critical Linkages On Measuring the Environmental Impact of Agricultural Trade Liberalization (Kym Anderson and Anna Strutt. ) Empirical Foundations for Environment-Trade Linkages: Implications of an Andean Study (John M. Antle, Charles C. Crissman, R. Jeff Wagenet, and J. L. Hutson. ) Environmental Policies in Europe and the Effect on the Balance of Trade (Jan C. Blom. ) Environmental Regulation and the Competitiveness of U.S. Agriculture (Bruce L. Gardner. ) Trade Implication of the EU Nitrate Directive: An Emerging Research Priority (Dale Leuck and Stephen Haley. ) International Environmental Indicators: Trade, Income, and Endowments (Robert E.B. Lucas. ) Key Questions And Research Needs Key Questions (David E. Ervin and Vivian Noble Keller. ) Research Needs (Gerald C. Nelson. ) Reflections on Research Needs (Cathy Roheim Wessells.)

Resolving International Environmental Disputes: Public Participation and the Right-to-Know

The North American Free Trade Agreement is the first trade pact that provides considerable protections for a country's environmental standards. The environmental side agreement to theNAFTA, negotiated at the insistence of and with the participation of environmental groups, has promoted the important roles in environmental regulation and enforcement played by the principles of transparency (right-to-know) and public participation (right-to-sue). The side agreement provides for: citizen submissions to the Secretariat of the North American Commission for Environmental Cooperation; the U.S., Mexican, and Canadian governments' guarantees of citizens' right-to-know, as well as citizen suits and remedies regarding environmental harm and requests for enforcement of environmental laws. As procedures under the NAFTA and its environmental side agreement are developed, opportunities remain to incorporate the principles af transparency and public participation even more broadly.2

Enforcement of Environmental Measures: Negotiating the NAFTA Environmental Side Agreement

This paper traces the negotiation of the NAFTA Environmental Side Agreement, conducted during the summer of 1993. It contrasts the original position of theNAFTAparties to the final agreement,and finds that the initial demand by the United States for an international mechanism (specifically, trade sanctions) to enforce the NAFTA parties' environmental legislation became heavily qualified in the final agreement. The reasons for this outcome were: (i) environmental enforcement posed a threat to national sovereignty; (ii) trade sanctions represented a special concern for smaller NAFTA part ners, and presented problems of workability in practice; and (iii) a cooperative rather than prosecutorial approach promised more positive benefits in an international environmental agreement. These conclusions are likely to pertain to future accession negotiations should NAFTA be expanded to include new members.