The following is the text of the NAFTA draft side accord on the
environment. It is over 1500 lines long.
[Text follows]
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NORTH AMERICAN FREE TRADE AGREEMENT
DRAFT SIDE ACCORD ON ENVIRONMENT
SEPT. 10, 1993 (TEXT)
BODY:
NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION
BETWEEN THE GOVERNMENT OF CANADA, THE GOVERNMENT OF THE UNITED
MEXICAN STATES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA
1993 DRAFT
PREAMBLE
The Government of Canada, the Government of the United Mexican
States and the Government of the United States of America:
CONVINCED of the importance of the conservation, protection
and enhancement of the environment in their territories and the
essential role of cooperation in these areas in achieving
sustainable development for the well-being of present and future
generations;
REAFFIRMING the sovereign right of States to exploit their
own resources pursuant to their own environmental and development
policies and their responsibility to ensure that activities
within their jurisdiction or control donot cause damage to the
environment of other States or of areas beyond the limits of
national jurisdiction;
RECOGNIZING the interrelationship of their environments;
ACKNOWLEDGING the growing economic and social links between
them, including theNorth American Free Trade Agreement (NAFTA);
RECONFIRMING the importance of the environmental goals and
objectives of the NAFTA, including enhanced levels of
environmental protection;
EMPHASIZING the importance of public participation in
conserving, protecting and enhancing the environment;
NOTING the existence of differences in their respective
natural endowments, climatic and geographical conditions, and
economic, technological and infrastructural capabilities;
REAFFIRMING the Stockholm Declaration on the Human
Environment of 1972 and the Rio Declaration on Environment and
Development of 1992;
RECALLING their tradition of environmental cooperation and
expressing their desire to support and build on international
environmental agreements and existing policies and laws in order
to promote cooperation between them; and
CONVINCED of the benefits to be derived from a framework,
including a Commission, to facilitate effective cooperation on
the conservation, protection and enhancement of the environment
in their territories; HAVE AGREED AS FOLLOWS: PART ONE
OBJECTIVES Article 1: Objectives
The objectives of this Agreement are to:
(a) foster the protection and improvement of the environment
in the territories of the Parties for the well-being of present
and future generations; (b) promote sustainable development
based on cooperation and mutually supportive environmental and
economic policies;
(c) increase cooperation between the Parties to better
conserve, protect, and enhance the environment, including wild
flora and fauna;
(d) support the environmental goals and objectives of the
NAFTA;
(e) avoid creating trade distortions or new trade barriers;
(f) strengthen cooperation on the development and improvement
of environmental laws, regulations, procedures, policies and
practices;
(g) enhance compliance with, and enforcement of,
environmental laws and regulations;
(h) promote transparency and public participation in the
development of environmental laws, regulations and policies;
(i) promote economically efficient and effective
environmental measures; and
(j) promote pollution prevention policies and practices.
PART TWO OBLIGATIONS Article 2: General Commitments
1. Each Party shall, with respect to its territory:
(a) periodically prepare and make publicly available reports
on the state of the environment; (b) develop and review
environmental emergency preparedness measures;
(c) promote education in environmental matters, including
environmental law;
(d) further scientific research and technology development in
respect of environmental matters;
(e) assess, as appropriate, environmental impacts; and
(f) promote the use of economic instruments for the efficient
achievement of environmental goals.
2. Each Party shall consider implementing in its law any
recommendation developed by the Council under Article 10(5)(b).
3. Each Party shall consider prohibiting the export to the
territories of theother Parties of a pesticide or toxic substance
whose use is prohibited within the Party's territory. When a
Party adopts a measure prohibiting or severely restricting the
use of a pesticide or toxic substance in its territory, it
shallnotify the other Parties of the measure, either directly or
through an appropriate international organization. Article 3:
Levels of Protection
Recognizing the right of each Party to establish its own
levels of domestic environmental protection and environmental
development policies and priorities, and to adopt or modify
accordingly its environmental laws and regulations, each Party
shall ensure that its laws and regulations provide for high
levels of environmental protection and shall strive to continue
to improve those laws and regulations. Article 4: Publication
1. Each Party shall ensure that its laws, regulations,
procedures and administrative rulings of general application
respecting any matter covered by this Agreement are promptly
published or otherwise made available in such a manner as to
enable interested persons and Parties to become acquainted with
them.
2. To the extent possible, each Party shall:
(a) publish in advance any such measure that it proposes to
adopt; and
(b) provide interested persons and Parties a reasonable
opportunity to comment on such proposed measures.
Article 5: Government Enforcement Action
1. With the aim of achieving high levels of environmental
protection and compliance with its environmental laws and
regulations, each Party shall effectively enforce its
environmental laws and regulations through appropriate
governmental action, subject to Article 37, much as:
(a) appointing and training inspectors;
(b) monitoring compliance and investigating suspected
violations, including through on-site inspections;
(c) seeking assurances of voluntary compliance and compliance
agreements;
(d) publicly releasing noncompliance information;
(e) issuing bulletins or other periodic statements on enforcement
procedures;
(f) promoting environmental audits;
(g) requiring record keeping and reporting;
(h) providing or encouraging mediation and arbitration
services;
(i) using licenses, permits or authorizations;
(j) initiating, in a timely manner, judicial, quasi-judicial
or administrative proceedings to seek appropriate sanctions or
remedies for violations of its environmental laws and
regulations:
(k) providing for search, seizure or detention; or
(l) issuing administrative orders, including orders of a
preventative, curativeor emergency nature.
2. Each Party shall ensure that judicial, quasi-judicial or
administrative enforcement proceedings are available under its
law to sanction or remedy violations of its environmental laws
and regulations.
3. Sanctions and remedies provided for a violation of a
Party's environmentallaws and regulations shall, as appropriate:
(a) take into consideration the nature and gravity of the
violation, any economic benefit derived from the violation by the
violator, the economic condition of the violator, and other
relevant factors; and
(b) include compliance agreements, fines, imprisonment,
injunctions, the closure of facilities, and the cost of
containing or cleaning up pollution. Article 6: Private Access
to Remedies
1. Each Party shall ensure that interested persons may request
the Party's competent authorities to investigate alleged
violations of its environmental laws and regulations and shall
give such requests due consideration in accordance with law.
2. Each Party shall ensure that persons with a legally
recognized interest under its law in a particular matter have
appropriate access to administrative, quasi-judicial or judicial
proceedings for the enforcement of the Party's environmental laws
and regulations.
3. Private access to remedies shall include rights, in
accordance with the Party's law, such as:
(a) to sue another person under that Party's jurisdiction for
damages;
(b) to seek sanctions or remedies such as monetary penalties,
emergency closures or orders to mitigate the consequences of
violations of its environmental laws and regulations;
(c) to request the competent authorities to take appropriate
action to enforce that Party's environmental laws and regulations
in order to protect the environment or to avoid environmental
harm; or
(d) to seek injunctions where a person suffers, or may
suffer, loss, damage or injury as a result of conduct by another
person under that Party's jurisdiction contrary to that Party's
environmental laws and regulations or from tortious conduct.
Article 7: Procedural Guarantees
1. Each Party shall ensure that its administrative, quasi-
judicial and judicial proceedings referred to in Articles 5(2)
and 6(2) are fair, open and equitable, and to this end shall
provide that such proceedings:
(a) comply with due process of law;
(b) are open to the public, except where the administration
of justice otherwise requires;
(c) entitle the parties to the proceedings to support or
defend their respective positions and to present information or
evidence; and
(d) are not unnecessarily complicated and do not entail
unreasonable charges ortime limits or unwarranted delays.
2. Each Party shall provide that final decisions on the merits
of the case insuch proceedings are:
(a) in writing and preferably state the reasons on which the
decisions are based;
(b) made available without undue delay to the parties to the
proceedings and, consistent with its law, to the public; and
(c) based on information or evidence in respect of which the
parties were offered the opportunity to be heard.
3. Each Party shall provide, as appropriate that parties to
such proceedings have the right, in accordance with its law, to
seek review and. where warranted.correction of final decisions
issued in such proceedings.
4. Each Party shall ensure that tribunals that conduct or
review such proceedings are impartial and independent and do not
have any substantial interest in the outcome of the matter.
PART THREE COMMISSION FOR ENVIRONMENTAL COOPERATION Article 8:
The Commission
1. The Parties hereby establish the Commission for Environmental
Cooperation.
2. The Commission shall comprise a Council, a Secretariat and
a Joint Public Advisory Committee. Section A: The Council
Article 9: Council Structure and Procedures
1. The Council shall comprise cabinet-level or equivalent
representatives of the Parties, or their designees.
2. The Council shall establish its rules and procedures.
3. The Council shall convene:
(a) at least once a year in regular session; and
(b) in special session at the request of any Party. Regular
sessions shall be chaired successively by each Party. 4. The
Council shall hold public meetings in the course of all regular
sessions. Other meetings held in the course of regular or special
sessions shallbe public where the Council so decides.
5. The Council may:
(a) establish, and assign responsibilities to, ad hoc or
standing committees, working groups or expert groups;
(b) seek the advice of non-governmental organizations or
persons, including independent experts; and
(c) take such other action in the exercise of its functions
as the Parties may agree.
6. All decisions and recommendations of the Council shall be
taken by consensus, except as the Council may otherwise decide or
as otherwise provided in this Agreement.
7. All decisions and recommendations of the Council shall be
made public, except as the Council may otherwise decide or as
otherwise provided in this Agreement. Article 10: Council
Functions
1. The Council shall be the governing body of the Commission
and shall:
(a) serve as a forum for the discussion of environmental
matters within the scope of this Agreement;
(b) oversee the implementation and develop recommendations on
the further elaboration of this Agreement;
(c) oversee the Secretariat;
(d) address questions and differences that may arise between
the Parties regarding the interpretation or application of this
Agreement;
(e) approve the annual program and budget of the Commission;
and
(f) promote and facilitate cooperation between the Parties
with respect to environmental matters. 2. The Council may
consider, and develop recommendations regarding:
(a) comparability of techniques and methodologies for data
gathering and analysis, data management and electronic data
communications on matters covered by this Agreement;
(b) pollution prevention techniques and strategies;
(c) approaches and common indicators for reporting on the
state of the environment:
(d) the use of economic instruments for the pursuit of
domestic and internationally agreed environmental objectives;
(e) scientific research and technology development in respect
of environmental matters;
(f) promotion of public awareness regarding the environment;
(g) transboundary and border environmental issues, such as
the long-range transport of air and marine pollutants; (h) exotic
species that may be harmful;
(i) the conservation and protection of wild flora and fauna
and their habitat, and specially protected natural areas;
(j) the protection of endangered and threatened species;
(k) environmental emergency preparedness and response
activities;
(l) environmental matters as they relate to economic
development;
(m) the environmental implications of goods throughout their
life cycles;
(n) human resource training and development in the
environmental field;
(o) the exchange of environmental scientists and officials;
(p) approaches to environmental compliance and enforcement;
(q) ecologically sensitive national accounts; (r) eco-
labelling; and
(s) other matters as it may decide.
3. The Council shall strengthen cooperation on the development
and continuingimprovement of environmental laws and regulations
including by:
(a) promoting the exchange of information on criteria and
methodologies used inestablishing domestic environmental
standards; and
(b) without reducing levels of environmental protection,
establishing a processfor developing recommendations on greater
compatibility of environmental technical regulations, standards
and conformity assessment procedures in a manner consistent with
the NAFTA.
4. The Council shall encourage:
(a) effective enforcement by each Party of its environmental
laws and regulations;
(b) compliance with those laws and regulations; and
(c) technical cooperation between the Parties.
5. The Council shall promote and, as appropriate, develop
recommendations regarding:
a) public access to information concerning the environment
that is held by public authorities of each Party, including
information on hazardous materials and activities in its
communities, and opportunity to participate in decision-making
processes related to such public access; and
b) appropriate limits for specific pollutants, taking into
account differences in ecosystems.
6. The Council shall cooperate with the NAFTA Free Trade
Commission to achieve the environmental goals and objectives of
the NAFTA by:
(a) acting as a point of inquiry and receipt for comments
from non-governmentalorganizations and persons concerning those
goals and objectives;
(b) providing assistance in consultations under Article 1114 of
the NAFTA where a Party considers that another Party is waiving
or derogating from, or offering to waive or otherwise derogate
from. an environmental measure as an encouragement to establish,
acquire, expand or retain an investment of an investor, with a
view to avoiding any such encouragement;
(c) contributing to the prevention or resolution of
environment-related tradedisputes by:
(i) seeking to avoid disputes between the Parties,
(ii) making recommendations to the Free Trade Commission
with respect to the avoidance of such disputes, and
(iii) identifying experts able to provide information or
technical advice to NAFTA committees, working groups and other
NAFTA bodies;
(d) considering on an ongoing basis the environmental effects
of the NAFTA; and
(e) otherwise assisting the Free Trade Commission in
environment-related matters.
7. Recognizing the significant bilateral nature of many
transboundary environmental issues, the Council shall, with a
view to agreement between the Parties pursuant to this Article
within three years on obligations, consider anddevelop
recommendations with respect to:
a) assessing the environmental impact of proposed projects
subject to decisionsby a competent government authority and
likely to cause significant adverse transboundary effects,
including a full evaluation of comments provided by otherParties
and persons of other Parties;
b) notification, provision of relevant information and
consultation between Parties with respect to such projects; and
c) mitigation of the potential adverse effects of such
projects.
8. The Council shall encourage the establishment by each Party
of appropriateadministrative procedures pursuant to its
environmental laws to permit another Party to seek the reduction.
elimination or mitigation of transboundary pollution on a
reciprocal basis. 9. The Council shall consider and, as
appropriate, develop recommendations onthe provision by a Party,
on a reciprocal basis, of access to and rights and remedies
before its courts and administrative agencies for persons in
another Party's territory who have suffered or are likely to
suffer damage or injury caused by pollution originating in its
territory as if the damage or injury weresuffered in its
territory. Section B: The Secretariat Article 11: Secretariat
Structure and Procedures
1. The Secretariat shall be headed by an Executive Director,
who shall be chosen by the Council for a three-year term, which
may be renewed by the Councilfor one additional three-year term.
The position of Executive Director shall rotate consecutively
between nationals of each Party. The Council may remove
theExecutive Director solely for cause.
2. The Executive Director shall appoint and supervise the
staff of the Secretariat, regulate their powers and duties and
fix their remuneration in accordance with general standards to be
established by the Council. The general standards shall provide
that: (a) staff shall be appointed and retained, and their
conditions of employment shall be determined, strictly on the
basis of efficiency, competence and integrity;
(b) in appointing staff, the Executive Director shall take
into account lists of candidates prepared by the Parties and by
the Joint Public Advisory Committee;
(c) due regard shall be paid to the importance of recruiting
an equitable proportion of the professional staff from among the
nationals of each Party; and (d) the Executive Director shall
inform the Council of all appointments.
3. The Council may decide, by a two-thirds vote, to reject any
appointment that does not meet the general standards. Any such
decision shall be made and held in confidence.
4. In the performance of their duties, the Executive Director
and the staff shall not seek or receive instructions from any
government or any other authority external to the Council. Each
Party shall respect the international character of the
responsibilities of the Executive Director and the staff and
shall not seek to influence them in the discharge of their
responsibilities.
5. The Secretariat shall provide technical, administrative and
operational support to the Council and to committees and groups
established by the Council, and such other support as the Council
may direct.
6. The Executive Director shall submit for the approval of the
Council the annual program and budget of the Commission,
including provision for proposed cooperative activities and for
the Secretariat to respond to contingencies.
7. The Secretariat shall, as appropriate, provide the Parties
and the public information on where they may receive technical
advice and expertise with respect to environmental matters.
3. The Secretariat shall safeguard:
(a) form disclosure information it receives that could
identify a non-governmental Organization or person making a
submission if the person or organization so requests or the
Secretariat otherwise considers it appropriate; and (b) from
public disclosure any information it receives from any non-
governmental organization or person where the information is
designated by that non-governmental organization or person as
confidential or proprietary. Article 12: Annual Report of the
Commission
1. The Secretariat shall prepare an annual report of the
Commission in accordance with instructions from the Council. The
Secretariat shall submit a draft of the report for review by the
Council. The final report shall be released publicly.
2. The report shall cover:
(a) activities and expenses of the Commission during the
previous year;
(b) the approved program and budget of the Commission for the
subsequent year;
(c) the actions taken by each Party in connection with its
obligations under this Agreement, including data on the Party's
environmental enforcement activities; (d) relevant views and
information submitted by non-governmental organizations and
persons, including summary data regarding submissions, and any
other relevant information the Council deems appropriate;
(e) recommendations made on any matter within the scope of
this Agreement; and
(f) any other matter that the Council instructs the
Secretariat to include.
3. The report shall periodically address the state of the
environment in the territories of the Parties. Article 13:
Secretariat Reports
1. The Secretariat may prepare a report for the Council on any
matter within the scope of the annual program. Should the
Secretariat wish to prepare a reporton any other environmental
matter related to the cooperative functions of this Agreement, it
shall notify the Council and may proceed unless, within 30 days
ofsuch notification, the Council objects by a two-thirds vote to
the preparation of the report. Such other environmental matters
shall not include issues relatedto whether a Party has failed to
enforce its environmental laws and regulations. Where the
Secretariat does not have specific expertise in the matter under
review, it shall obtain the assistance of one or more independent
experts of recognized experience in the matter to assist in the
preparation of the report.
2. In preparing such a report, the Secretariat may draw upon
any relevant technical, scientific or other information,
including information:
(a) that is publicly available;
(b) submitted by interested non-governmental organizations
and persons;
(c) submitted by the Joint Public Advisory Committee;
(d) furnished by a Party;
(e) gathered through public consultations, such as
conferences, seminars and symposia; or
(f) developed by the Secretariat, or by independent experts
engaged pursuant toparagraph l. 3. The Secretariat shall submit
its report to the Council, which shall make it publicly
available, normally within 60 days following its submission,
unless the Council otherwise decides. Article 14: Submissions
on Enforcement Matters
1. The Secretariat may consider a submission from any non-
governmental organization or person asserting that a Party is
failing to effectively enforce its environmental law, if the
Secretariat finds that the submission:
(a) is in writing in a language designated by that Party in a
notification to the Secretariat;
(b) clearly identifies the person or organization making the
submission;
(c) provides sufficient information to allow the Secretariat
to review the submission, including any documentary evidence on
which the submission may be based;
(d) appears to be aimed at promoting enforcement rather than
at harassing industry; (e) indicates that the matter has been
communicated in writing to the relevant authorities of the Party
and indicates the Party's response, if any; and
(f) is filed by a person or organization residing or
established in the territory of a Party.
2. Where the Secretariat determines that a submission meets
the criteria set out in paragraph 1, the Secretariat shall
determine whether the submission merits requesting a response
from the Party. In deciding whether to request a response, the
Secretariat shall be guided by whether:
(a) the submission alleges harm to the person or organization
making the submission;
(b) the submission, alone or in combination with other
submissions, raises matters whose further study in this process
would advance the goals of this Agreement;
(c) private remedies available under the Party's law have
been pursued; and
(d) he submission is drawn exclusively from mass media reports.
Where the Secretariat makes such a request, it shall forward to
the Party a copy of the submission and any supporting information
provided with the submission.
3. The Party shall advise the Secretariat within 30 days or,
in exceptional circumstances and on notification to the
Secretariat, within 60 days of deliveryof the request:
(a) whether the matter is the subject of a pending judicial
or administrative proceeding, in which case the Secretariat shall
proceed no further; and
(b) of any other information that the Party wishes to submit,
such as
i) whether the matter was previously the subject of a
judicial or administrative proceeding, and
ii) whether private remedies in connection with the matter
are available to the person or organization making the submission
and whether they have been pursued. Article 15: Factual Record
1. If the Secretariat considers that the submission, in the light
of any response provided by the Party. warrants developing a
factual record the Secretariat shall so inform the Council and
provide its reasons.
2. The Secretariat shall prepare a factual record if the
Council, by a two-thirds vote, instructs it to do so.
3. The preparation of a factual record by the Secretariat
pursuant to this Article shall be without prejudice to any
further steps that may be taken with respect to any submission.
4. In preparing a factual record, the Secretariat shall
consider any information furnished by a Party and may consider
any relevant technical, scientific or other information:
(a) that is publicly available;
(b) submitted by interested non-governmental organizations or
persons;
(c) submitted by the Joint Public Advisory Committee; or
(d) developed by the Secretariat or by independent experts.
5. The Secretariat shall submit a draft factual record to the
Council. Any Party may provide comments on the accuracy of the
draft within 45 days thereafter.
6. The Secretariat shall incorporate, as appropriate, any such
comments in the final factual record and submit it to the
Council.
7. The Council may, by a two-thirds vote, make the final
factual record publicly available, normally within 60 days
following its submission. Section C: Advisory Committees
Article 16: Joint Public Advisory Committee
1. The Joint Public Advisory Committee shall comprise 15
members, unless the Council otherwise decides. Each Party or, if
the Party so decides, its National Advisory Committee convened
under Article 17, shall appoint an equal number of members. 2.
The Council shall establish the rules of procedure for the Joint
Public Advisory Committee, which shall choose its own chair.
3. The Joint Public Advisory Committee shall convene at least
once a year at the time of the regular session of the Council and
at such other times as the Council, or the Committee's chair with
the consent of a majority of its members,may decide.
4. The Joint Public Advisory Committee may provide advice to
the Council on any matter within the scope of this Agreement,
including on any documents provided to it under paragraph 6. and
on the implementation and further elaboration of this Agreement,
and may perform such other functions as the Council may direct.
5. The Joint Public Advisory Committee may provide relevant
technical, scientific or other information to the Secretariat,
including for purposes of developing a factual record under
Article 15. The Secretariat shall forward to the Council copies
of any such information.
6. The Secretariat shall provide to the Joint Public Advisory
Committee at the time they are submitted to the Council copies of
the proposed annual program and budget of the Commission. the
draft annual report, and any report the Secretariat prepares
pursuant to Article 13.
7. The Council may, by a two-thirds vote, make a factual
record available to the Joint Public Advisory Committee.
Article 17: National Advisory Committees
Each Party may convene a national advisory committee,
comprising members of its public, including representatives of
non-governmental organizations and persons, to advise it on the
implementation and further elaboration of this Agreement.
Article 18: Governmental Committees
Each Party may convene a governmental committee, which may
comprise or include representatives of federal and state or
provincial governments, to advise it on the implementation and
further elaboration of this Agreement. Section D: Official
Languages
Article 19: Official Languages
The official languages of the Corn mission shall be English,
French and Spanish. All annual reports under Article 12, reports
submitted to the Council under Article 13, factual records
submitted to the Council under Article 15 (6) and panel reports
under Part Five shall be available in each official language at
the time they are made public. The Council shall establish rules
and procedures regarding interpretation and translation. PART
FOUR COOPERATION AND PROVISION OF INFORMATION Article 20:
Cooperation
1. The Parties shall at all times endeavor to agree on the
interpretation andapplication of this Agreement and shall make
every attempt through cooperation and consultations to resolve
any matter that might affect its operation.
2. To the maximum extent possible, each Party shall notify any
other Party with an interest in the matter of any proposed or
actual environmental measure that the Party considers might
materially affect the operation of this Agreementor otherwise
substantially affect that other Party's interests under this
Agreement.
3. On request of any other Party, a Party shall promptly
provide information and respond to questions pertaining to any
such actual or proposed environmentalmeasure, whether or not that
other Party has been previously notified of that measure.
4. Any Party may notify any other Party of, and provide to
that Party, any credible information regarding possible
violations of its environmental law, specific and sufficient to
allow the other Party to inquire into the matter. Thenotified
Party shall take appropriate steps in accordance with its law to
so inquire and to respond to the other Party. Article 21:
Provision of Information
1. On request of the Council or the Secretariat each Party
shall, in accordance with its law, provide such information as
the Council or the Secretariat may require, including:
(a) promptly making available any information in its
possession required for the preparation of a report or factual
record, including compliance and enforcement data; and
(b) taking all reasonable steps to make available any other
such information requested.
2. if a Party considers that a request for information from
the Secretariat is excessive or otherwise unduly burdensome, it
may so notify the Council. The Secretariat shall revise the scope
of its request to comply with any limitationsestablished by the
Council by a two-thirds vote.
3. if a Party does not make available information requested by
the Secretariat, as may be limited pursuant to paragraph 2, it
shall promptly advisethe Secretariat of its reasons in writing.
PART FIVE CONSULTATION AND RESOLUTION OF DISPUTES Article 22:
Consultations
1. Any Party may request in writing consultations with any
other Party regarding whether there has been a persistent pattern
of failure by that other Party to effectively enforce its
environmental law. 2. The requesting Party shall deliver the
request to the other Parties and tothe Secretariat.
3. Unless the Council otherwise provides in its rules and
procedures established under Article 9(2). a third Party that
considers it has a substantial interest in the matter shall be
entitled to participate in the consultations on delivery of
written notice to the other Parties and to the Secretariat.
4. The consulting Parties shall make every attempt to arrive
at a mutually satisfactory resolution of the matter through
consultations under this Article. Article 23: Initiation of
Procedures
1. If the consulting Parties fail to resolve the matter
pursuant to Article 22 within 60 days of delivery of a request
for consultations, or such other period as the consulting Parties
may agree any such Party may request in writinga special session
of the Council.
2. The requesting Party shall state in the request the matter
complained of and shall deliver the request to the other Parties
and to the Secretariat. 3. Unless it decides otherwise, the
Council shall convene within 20 days of delivery of the request
and shall endeavor to resolve the dispute promptly.
4. The Council may:
(a) call on such technical advisers or create such working
groups or expert groups as it deems necessary,
(b) have recourse to good offices, conciliation, mediation or
such other dispute resolution procedures, or
(c) make recommendations, as may assist the consulting
Parties to reach a mutually satisfactory resolution of the
dispute. Any such recommendations shall be made public if the
Council, by a two-thirds vote, so decides.
5. Where the Council decides that a matter is more properly
covered by another agreement or arrangement to which the
consulting Parties are party, it shall refer the matter to those
Parties for appropriate action in accordance with such other
agreement or arrangement. Article 24: Request far an Arbitral
Panel 1. If the matter has not been resolved within 60 days after
the Council has convened pursuant to Article 23, the Council
shall, on the written request of any consulting Party and by a
two-thirds vote, convene an arbitral panel to consider the matter
where the alleged persistent pattern of failure by the
Partycomplained against to effectively enforce its environmental
law relates to a situation involving workplaces, firms, companies
or sectors that produce goods or provide services:
(a) traded between the territories of the Parties; or
(b) that compete, in the territory of the Party complained
against, with goods or services produced or provided by persons
of another Party.
2. A third Party that considers it has a substantial interest
in the matter shall be entitled to join as a complaining Party on
delivery of written notice of its intention to participate to the
disputing Parties and the Secretariat. The notice shall be
delivered at the earliest possible time, and in any event nolater
than seven days after the date of the vote of the Council to
convene a panel.
3. Unless otherwise agreed by the disputing Parties, the panel
shall be established and perform its functions in a manner
consistent with the provisionsof this Part. Article 25: Roster
1. The Council shall establish and maintain a roster of up to
45 individuals who are willing and able to serve as panelists.
The roster members shall be appointed by consensus for terms of
three years, and may be reappointed.
2. Roster members shall:
(a) have expertise or experience in environmental law or its
enforcement, or inthe resolution of disputes arising under
international agreements, or other relevant scientific, technical
or professional expertise or experience;
(b) be chosen strictly on the basis of objectivity,
reliability and sound judgment;
(c) be independent of, and not be affiliated with or take
instructions from, any Party, the Secretariat or the Joint Public
Advisory Committee; and (d) comply with a code of conduct to be
established by the Council. Article 26: Qualifications of
Panelists
1. All panelists shall meet the qualifications set out in
Article 25(2).
2. Individuals may not serve as panelists for a dispute in
which:
(a) they have participated pursuant to Article 23(4); or
(b) they have, or a person or organization with which they
are affiliated has, an interest, as set out in the code of
conduct established under Article 25(2)(d). Article 27: Panel
Selection
1. Where there are two disputing Parties, the following
procedures shall apply:
(a) The panel shall comprise five members. (b) The disputing
Parties shall endeavor to agree on the chair of the panel within
15 days after the Council votes to convene the panel. If the
disputing Parties are unable to agree on the chair within this
period, the disputing Partychosen by lot shall select within five
days a chair who is not a citizen of thatParty.
(c) Within 15 days of selection of the chair, each disputing
Party shall selecttwo panelists who are citizens of the other
disputing Party.
(d) If a disputing Party fails to select its panelists within
such period, suchpanelists shall be selected by lot from among
the roster members who are citizens of the other disputing Party.
2. Where there are more than two disputing Parties, the
following procedures shall apply:
(a) The panel shall comprise five members.
(b) The disputing Parties shall endeavor to agree on the
chair of the panel within 15 days after the Council votes to
convene the panel. If the disputing Parties are unable to agree
on the chair within this period, the Party or Parties on the side
of the dispute chosen by lot shall select within 10 days a chair
who is not a citizen of such Party or Parties.
(c) Within 30 days of selection of the chair, the Party
complained against shall select two panelists, one of whom is a
citizen of a complaining Party, andthe other of whom is a citizen
of another complaining Party. The complaining Parties shall
select two panelists who are citizens of the Party complained
against.
(d) If any disputing Party fails to select a panelist within
such period, such panelist shall be selected by lot in accordance
with the citizenship criteria ofsubparagraph (c).
3. Panelists shall normally be selected from the roster. Any
disputing Party may exercise a peremptory challenge against any
individual not on the roster whois proposed as a panelist by a
disputing Party within 30 days after the individual has been
proposed'.
4. If a disputing Party believes that a panelist is in
violation of the code of conduct, the disputing Parties shall
consult and if they agree, the panelist shall be removed and a
new panelist shall be selected in accordance with this Article.
Article 28: Rules of Procedure
1. The Council shall establish Model Rules of Procedure. The
procedures shallprovide:
(a) a right to at least one hearing before the panel;
(b) the opportunity to make initial and rebuttal written
submissions; and
(c) that no panel may disclose which panelists are associated
with majority or minority opinions.
2. Unless the disputing Parties otherwise agree, panels
convened under this Part shall be established and conduct their
proceedings in accordance with the Model Rules of Procedure.
3. Unless the disputing Parties otherwise agree within 20 days
after the Council votes to convene the panel, the terms of
reference shall be: "To examine, in light of the relevant
provisions of the Agreement, including those contained in Part
Five, whether there has been a persistent pattern of failure by
the Party complained against to effectively enforce its
environmentallaw, and to make findings, determinations and
recommendations in accordance withArticle 31(2)." Article 29:
Third Party Participation
A Party that is not a disputing Party, on delivery of a
written notice to thedisputing Parties and to the Secretariat,
shall be entitled to attend all hearings, to make written and
oral submissions to the panel and to receive written submissions
of the disputing Parties. Article 30: Role of Experts
On request of a disputing Party, or on its own initiative, the
panel may seekinformation and technical advice from any person or
body that it deems appropriate, provided that the disputing
Parties so agree and subject to such terms and conditions as such
Parties may agree.
Article 31: Initial Report
1. Unless the disputing Parties otherwise agree, the panel
shall base its report on the submissions and arguments of the
Parties and on any information before it pursuant to Article 30.
2. Unless the disputing Parties otherwise agree, the panel
shall, within 180 days after the last panelist is selected,
present to the disputing Parties an initial report containing:
(a) findings of fact;
(b) its determination as to whether there has been a
persistent pattern of failure by the Party complained against to
effectively enforce its environmentallaw, or any other
determination requested in the terms of reference; and
(c) in the event the panel makes an affirmative determination
under subparagraph (b), its recommendations, if any, for the
resolution of the dispute, which normally shall be that the Party
complained against adopt and implement an action plan sufficient
to remedy the pattern of non-enforcement. 3. Panelists may
furnish separate opinions on matters not unanimously agreed.
4. A disputing Party may submit written comments to the panel
on its initial report within 30 days of presentation of the
report.
5. In such an event, and after considering such written
comments, the panel, on its own initiative or on the request of
any disputing Party, may:
(a) request the views of any participating Party;
(b) reconsider its report; and
(c) make any further examination that it considers
appropriate. Article 32: Final Report
1. The panel shall present to the disputing Parties a final
report, includingany separate opinions on matters not unanimously
agreed, within 60 days of presentation of the initial report,
unless the disputing Parties otherwise agree. 2. The disputing
Parties shall transmit to the Council the final report of the
panel, as well as any written views that a disputing Party
desires to be appended, on a confidential basis within 15 days
after it is presented to them.
3. The final report of the panel shall be published five
days after it is transmitted to the Council. Article 33:
Implementation of Final Report
If, in its final report, a panel determines that there has
been a persistent pattern of failure by the Party complained
against to effectively enforce its environmental law, the
disputing Parties may agree on a mutually satisfactory action
plan, which normally shall conform with the determinations and
recommendations of the panel. The disputing Parties shall
promptly notify the Secretariat and the Council of any agreed
resolution of the dispute. Article 34: Review of Implementation
1. If, in its final report, a panel determines that there has
been a persistent pattern of failure by the Party complained
against to effectively enforce its environmental law, and: (a)
the disputing Parties have not agreed on an action plan under
Article 33 within 60 days of the date of the final report, or
(b) the disputing Parties cannot agree on whether the Party
complained against is fully implementing
(i) an action plan agreed under Article 33,
(ii) an action plan deemed to have been established by a
panel under paragraph2, or
(iii) an action plan approved or established by a panel
under paragraph 4, anydisputing Party may request that the panel
be reconvened. The requesting Party shall deliver the bequest in
writing to the other Parties and to the Secretariat. The Council
shall reconvene he panel on delivery of the request to the
Secretariat.
2. No Party may make a request under paragraph 1(a) earlier
than 60 days, or later than 120 days, after the date of the final
report. If the disputing Parties have not agreed to an action
plan and if no request was made under paragraph 1(a), the last
action plan, if any, submitted by the Party complained against to
the complaining Party or Parties within 60 days of the date the
finalreport, or such other period as the disputing Parties may
agree, shall be deemedto have been established by the panel 120
days after the date of the final report.
3. A request under paragraph 1(b) may be made no earlier than
180 days after an action plan has been:
(a) agreed under Article 33;
(b) deemed to have been established by a panel under
paragraph 2; or
(c) approved or established by a panel under paragraph 4; and
only during the term of any such action plan.
4. Where a panel has been reconvened under paragraph 1(a), it:
(a) shall determine whether any action plan proposed by the
Party complained against is sufficient to remedy the pattern of
non-enforcement and
(i) if so, shall approve the plan, or
(ii) if not, shall establish such a plan consistent with the
law of the Party complained against, and
(b) may, where warranted, impose a monetary enforcement
assessment in accordance with Annex 34, within 90 days after the
panel has been reconvened or such other period as the disputing
Parties may agree.
5. Where a panel has been reconvened under paragraph 1(b), it
shall determineeither that:
(a) the Party complained against is fully implementing the
action plan, in which case the panel may not impose a monetary
enforcement assessment, or
(b) he Party complained against is not fully implementing the
action plan, in which case the panel shall impose a monetary
enforcement assessment in accordance with Annex 34, within 60
days after it has been reconvened or such other period as the
disputing Parties may agree.
6. A panel reconvened under this Article shall provide that the
Party complained against shall fully implement any action plan
referred to in paragraph 4(a)(ii) or 5(b), and pay any monetary
enforcement assessment imposed under paragraph 4(b) or 5(b), and
any such provision shall be final. Article 35: Further
Proceeding
A complaining Party may, at any time beginning 180 days after
a panel determination under Article 34(5)(b), request in writing
that a panel be reconvened to determine whether the Party
complained against is fully implementing the action plan. On
delivery of the request to the other Parties and the Secretariat,
the Council shall reconvene the panel. The panel shall makethe
determination within 60 days after it has been reconvened or such
other period as the disputing Parties may agree. Article 36:
Suspension of Benefits
1. Subject to Annex 36A, where a Party fails to pay a monetary
enforcement assessment within 180 days after it is imposed by a
panel:
(a) under Article 34(4)(b), or (b) under Article 34(5)(b),
except where benefits may be suspended under paragraph 2(a), any
complaining Party or Parties may suspend, in accordance withAnnex
36B, the application to the Party complained against of NAFTA
benefits in an amount no greater than that sufficient to collect
the monetary enforcementassessment. 2. Subject to Annex 36A,
where a panel has made a determination under Article 34(5)(b) and
the panel:
(a) has previously imposed a monetary enforcement assessment
under Article 34(4)(b) or established an action plan under
Article 34(4)(a)(ii); or
(b) has subsequently determined under Article 35 that a Party
is not fully implementing an action plan; the complaining Party
or Parties may, in accordancewith Annex 36B, suspend annually the
application to the Party complained againstof NAFTA benefits in
an amount no greater than the monetary enforcement assessment
imposed by the panel under Article 34(5)(b).
3. Where more than one complaining Party suspends benefits
under paragraph 1 or 2, the combined suspension shall be no
greater than the amount of the monetary enforcement assessment.
4. Where a Party has suspended benefits under paragraph 1 or 2,
the Council shall, on the delivery of a written request by the
Party complained against to the other Parties and the Secretariat
reconvene the panel to determine whether the monetary enforcement
assessment has been paid or collected, or whether the Party
complained against is fully implementing the action plan. as the
case may be. The panel shall submit its report within 45 days
after it has been reconvened. If the panel determines that the
assessment has been paid or collected, or that the Parry
complained against is fully implementing the actionplan, the
suspension of benefits under paragraph 1 or 2, as the case may
be, shall be terminated.
5. On the written request of the Party complained against,
delivered to the other Parties and the Secretariat, the Council
shall reconvene the panel to determine whether the suspension of
benefits by the complaining Party or Partiespursuant to paragraph
1 or 2 is manifestly excessive. Within 45 days of the request,
the panel shall present a report to the disputing Parties
containing its determination. PART SIX GENERAL PROVISIONS
Article 37: Enforcement Principle Nothing in this Agreement shall
be construed to empower a Party's authoritiesto undertake
environmental law enforcement activities in the territory of
another Party. Article 38: Private Rights
No Party may provide for a right of action under its law
against any other Party on the ground that another Party has
acted in a manner inconsistent with this Agreement. Article 39:
Protection of Information
1. Nothing in this Agreement shall be construed to require a
Party to make available or allow access to information:
(a) the disclosure of which would impede its environmental
law enforcement; or
(b) that is protected from disclosure by its law governing
business or proprietary information, personal privacy or the
confidentiality of governmentaldecision making. 2. If a Party
provides confidential or proprietary information to another Party
the Council, the Secretariat or the Joint Public Advisory
Committee, the recipient shall treat the information on the same
basis as the Party providing the information.
3. Confidential or proprietary information provided by a Party
to a panel under this Agreement shall be treated in accordance
with the rules of procedure established under Article 28.
Article 40: Relation to Other Environmental Agreements
Nothing in this Agreement shall be construed to affect the
existing rights and obligations o: the Parties under other
international environmental agreements, including conservation
agreements, to which such Parties are party. Article 41: Extent
of Obligations
Annex 41 applies to the Parties specified in that Annex
Article 42: National Security Nothing in this Agreement shall be
construed:
(a) to require any Party to make available or provide access
to information thedisclosure of which it determines to be
contrary to its essential security interests; or
(b) to prevent any Party from taking any actions that it
considers necessary for the protection of its essential security
interests relating to
(i) arms, ammunition and implements of war, or
(ii) the implementation of national policies or
international agreements respecting the non-proliferation of
nuclear weapons or other nuclear explosive devices. Article 43:
Funding of the Commission
Each Party shall contribute an equal share of the annual
budget of the Commission, subject to the availability of
appropriated funds in accordance withthe Party's legal
procedures. No Party shall be obligated to pay more than any
other Party in respect of an annual budget. Article 44:
Privileges and Immunities
The Executive Director and staff of the Secretariat shall
enjoy in the territory of each Party such privileges and
immunities as are necessary for the exercise of their functions.
Article 45: Definitions
1. For purposes of this Agreement:
A Party has not failed to "effectively enforce its
environmental law" or to comply with Article 5(1) in a particular
case where the action or inaction in question by agencies or
officials of that Party:
(a) reflects a reasonable exercise of their discretion in
respect of investigatory, prosecutorial, regulatory or compliance
matters; or
(b) results from bonafide decisions to allocate resources to
enforcement in respect of other environmental matters determined
to have higher priorities;
"non-governmental organization" means any scientific,
professional, business, non-profit, or public interest
organization or association which is neither affiliated with, nor
under the direction of a government:
"persistent pattern" means a sustained or recurring course of
action or inaction beginning after the date of entry into force
of this Agreement:
"province" means a province of Canada, and includes the Yukon
Territory and theNorthwest Territories and their successors; and
"territory" means for a Party the territory of that Party as
set out in Annex 45.
2. For purposes of Article 14(1) and Part Five:
(a) "environmental law" means any statute or regulation of a
Party, or provision thereof, the primary purpose of which is the
protection of the environment, or the prevention of a danger to
human life or health, through
(i) the prevention, abatement or control of the release,
discharge, or emission of pollutants or environmental
contaminants, (ii) the control of environmentally hazardous or
toxic chemicals, substances, materials and wastes, and the
dissemination of information related thereto, or
iii) the protection of wild flora or fauna, including
endangered species, their habitat, and specially protected
natural areas
in the Party's territory, but does not include any statute or
regulation, or provision thereof, directly related to worker
safety or health.
(b) For greater certainty, the term "environmental law" does
not include any Statute or regulation, or provision thereof, the
primary purpose of which is managing the commercial harvest or
exploitation, or subsistence or aboriginal harvesting, of natural
resources.
(c) The primary purpose of a particular statutory or
regulatory provision for purposes of subparagraphs (a) and (b)
shall be determined by reference to its primary purpose, rather
than to the primary purpose of the statute or regulationof which
it is part.
3. For purposes of Article 14 (3), "judicial or administrative
proceeding" means:
(a) a domestic judicial, quasi-judicial or administrative
action pursued by theParty in a timely fashion and in accordance
with its law. Such actions comprise:mediation; arbitration; the
process of issuing a license, permit, or authorization; seeking
an assurance of voluntary compliance or a compliance agreement;
seeking sanctions or remedies in an administrative or judicial
forum;and the process of issuing an administrative order; and
(b) an international dispute resolution proceeding to which
the Party is party. PART SEVEN FINAL PROVISIONS Article 46:
Annexes
The Annexes to this Agreement constitute an integral part of
the 'Agreement. Article 47: Entry into Force
This Agreement shall enter into force on January 1, 1994,
immediately after entry into force of the NAFTA, on an exchange
of written notifications certifying the completion of necessary
legal procedures. Article 48: Amendments
1. The Parties may agree on any modification of or addition to
this Agreement.
2. When so agreed, and approved in accordance with the
applicable legal procedures of each Party. a modification or
addition shall constitute an integral part of this Agreement.
Article 49: Accession
Any country or group of countries may accede to this Agreement
subject to such terms and conditions as may be agreed between
such country or countries andthe Council and following approval
in accordance with the applicable legal procedures of each
country. Article 50: Withdrawal A Party may withdraw from this
Agreement six months after it provides writtennotice of
withdrawal to the other Parties. If a Party withdraws, the
Agreement shall remain in force for he remaining Parties.
Article 51: Authentic Texts
The English, French, and Spanish texts of this Agreement are
equally authentic.
IN WITNESS WHEREOF, the undersigned, being duly authorized by
the respective Governments. have signed this Agreement. ANNEX
34 MONETARY ENFORCEMENT ASSESSMENTS
1. For the first year after the date of entry into force of
this Agreement, any monetary enforcement assessment shall be no
greater than 20 million dollars (U.S.) or its equivalent in the
currency of the Party complained against. Thereafter, any
monetary enforcement assessment shall be no greater that .007
percent of total trade in goods between the Parties during the
most recent year for which data are available. 2. In determining
the amount of the assessment, the panel shall take into account:
(a) she pervasiveness and duration of the Party's persistent
pattern of failureto effectively enforce its environmental law;
(b) the level of enforcement that could reasonably be
expected of a Party givenits resource constraints;
(c) the reasons, if any, provided by the Party for not fully
implementing an action plan;
(d) efforts made by the Party to begin remedying the pattern
of non-enforcementafter the final report of the panel; and
(e) any other relevant factors.
3. All monetary enforcement assessments shall be paid n the
currency of the Party complained against into a fund established
in the name of the Commission by the Council and shall be
expended at the direction of the Council to improve or enhance
the environment or environmental law enforcement in the Party
complained against, consistent with its law. ANNEX 36A CANADIAN
DOMESTIC ENFORCEMENT AND COLLECTION
l. For the purposes of this Annex, panel determination means:
(a) a determination by a panel under Article 34(4)(b) or 5(b)
that provides that Canada shall pay a monetary enforcement
assessment; and
(b) a determination by a panel under Article 34(5)(b) that
provides that Canadashall fully implement an action plan where
the panel:
(i) has previously established an action plan under Article
34(4)(a)(ii) or imposed a monetary enforcement assessment under
Article 34(4)(b); or
(ii) has subsequently determined under Article 35 that
Canada is not fully implementing an action plan.
2. Canada shall adopt and maintain procedures that provide
that:
(a) subject to paragraph (b), the Commission, at the request
of a complaining Party, may in its own name file in a court of
competent jurisdiction a certifiedcopy of a panel determination;
(b) the Commission may file in court a panel determination
that is a panel determination described in paragraph 1(a) only if
Canada has failed to comply with the determination within 180
days of when the determination was made;
(c) when filed, the panel determination, for purposes of
enforcement, shall become an order of the court:
(d) the Commission may take proceedings for enforcement of a
panel determination that is made an order of the court, in that
court, against the person against whom the panel determination is
addressed in accordance with paragraph 6 of Annex 41;
(e) proceedings to enforce a panel determination that has
been made an order ofthe court shall be conducted by way of
summary proceedings;
(f) in proceedings to enforce a panel determination that is a
panel determination described in paragraph 1(b) and that has been
made an order of thecourt, the court shall promptly refer any
question of fact or any question of interpretation of the panel
determination to the panel that made the panel determination, and
the decision of the panel shall be binding on the court;
(g) a panel determination that has been made an order of the
court shall not besubject to domestic review or appeal; and
(h) an order made by the court in proceedings to enforce a
panel determination that has been made an order of the court
shall not be subject to review or appeal.
3. Where Canada is the Party complained against, the
procedures adopted and maintained by Canada under this Annex
shall apply and the procedures set out in Article 36 shall not
apply.
4. Any change by Canada to the procedures adopted and
maintained by Canada under this Annex that have the effect of
undermining the provisions of this Annex shall be considered a
breach of this Agreement. ANNEX 36B SUSPENSION OF BENEFITS
1. Where a complaining Party suspends NAFTA tariff benefits in
accordance with this Agreement the Party may increase the rates
of duty on originating goods of the Party complained against to
levels not to exceed the lesser of:
(a) the rate that was applicable to those goods immediately
prior to the date of entry into force of the NAFTA, and
(b) the Most-Favored-Nation rate applicable to those goods on
the date the Party suspends such benefits, and such increase may
be applied only for such time as is necessary to collect, through
such increase, the monetary enforcementassessment.
2. In considering what tariff or other benefits to suspend
pursuant to Article 36(1) or (2):
(a) a complaining Party shall first seek to suspend benefits
in the same sectoror sectors as that in respect of which there
has been a persistent pattern of failure by the Party complained
against to effectively enforce its environmentallaw; and
(b) a complaining Party that considers it is not practicable
or effective to suspend benefits in the same sector or sectors
may suspend benefits in other sectors. ANNEX 41 EXTENT OF
OBLIGATIONS
1. On the date of signature of this Agreement, or of the
exchange of written notifications under Article 47, Canada shall
set out in a declaration a list of any provinces for which Canada
is to be bound in respect of matters within theirjurisdiction.
The declaration shall be effective on delivery to the other
Parties, and shall carry no implication as to the internal
distribution of powers within Canada. Canada shall notify the
other Parties six months in advance of any modification of its
declaration.
2. When considering whether to instruct the Secretariat to
prepare a factual record pursuant to Article 15, the Council
shall take into account whether the submission was made by a non-
governmental organization or enterprise incorporated or otherwise
organized under the laws of a province listed in the declaration
made under paragraph 1.
3. Canada may not request consultations under Article 22 or a
Council meetingunder Article 23 or request the establishment of a
panel or join as a complaining Party under Article 24 against
another Party at the instance, or primarily for the benefit, of
any provincial government not listed in the declaration made
under paragraph 1.
4. Canada may not request a Council meeting under Article 23,
or request the establishment of a panel or join as a complaining
Party under Article 24 concerning whether there has been a
persistent pattern of failure by another Party to effectively
enforce its environmental law, unless Canada states in writing
that the matter would be under federal jurisdiction if it were to
arise within the territory of Canada, or:
(a) Canada states in writing that the matter would be under
provincial jurisdiction if it were to arise within the territory
of Canada, and
(b) the provinces listed in the declaration account for at
least 55 percent of Canada's Gross Domestic Product (GDP) for the
most recent year in which data areavailable, and
(c) where the matter concerns a specific industry or sector,
at least 55 percent of total Canadian production in that industry
or sector is accounted forby the provinces listed in the
declaration for the most recent year in which data are available.
5. No other Party may request a Council meeting under Article
23 or request the establishment of a panel or join as a
complaining Party under Article 24 concerning whether
establishment of a panel or join as a complaining Party
underArticle 24 concerning whether there has been a persistent
failure to effectivelyenforce an environmental law of a province
unless that province is included in the declaration made under
paragraph l and the requirements of subparagraphs 4(b) and (c)
have been met.
6. Canada shall, no later than the date on which an arbitral
panel is convened pursuant to Article 24 respecting a matter
within the scope of paragraph 5 of this Annex, notify in writing
the complaining Parties and the Secretariat of whether any
monetary enforcement assessment or action plan imposed by a panel
under Article 34(4) or 34(5) against Canada shall be addressed to
Her Majesty in right of Canada or Her Majesty in right of the
province concerned.
7. Canada shall use its best efforts to make this Agreement
applicable to as many of its provinces as possible. 8. Two bears
after the date of entry into force of this Agreement, the Council
shall review the operation of this Annex and, in particular,
shall consider whether the Parties should amend the thresholds
established in paragraph 4.
ANNEX 45 COUNTRY-SPECIFIC DEFINITIONS For purposes of this
Agreement:
territory means:
(a) with respect to Canada, the territory to which its
customs laws apply, including any areas beyond the territorial
seas of Canada within which, in accordance with international law
and its domestic law, Canada may exercise rights with respect to
the seabed and subsoil and their natural resources;
(b) with respect to Mexico,
(i) the states of the Federation and the Federal District,
(ii) the islands, including the reefs and keys, in adjacent
seas, (iii) the islands of Guadalupe and Revillagigedo situated
in the Pacific Ocean,
iv) the continental shelf and the submarine shelf of such
islands, keys and reefs,
(v) the waters of the territorial seas, in accordance with
international law, and its interior maritime waters,
(vi) the space located above the national territory, in
accordance with international law, and
(vii) any areas beyond the territorial seas of Mexico within
which, in accordance with international law, including the United
Nations Convention on the Law of the Sea, and its domestic law,
Mexico may exercise rights with respect to the seabed and sub
soil and their natural resources; and
(c) with respect to the United States,
(i) the customs territory of the United States, which
includes the 50 states, the District of Columbia and Puerto Rico,
(ii) the foreign trade zones located in the United States
and Puerto Rico, and
(iii) any areas beyond the territorial seas of the United
States within which,in accordance with international law and its
domestic law, the United States mayexercise rights with respect
to the seabed and subsoil and their natural resources.
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