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De-Institutionalizing North America:1 NAFTA's Committees and Working

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De-Institutionalizing North America:1 NAFTA's Committees and Working De-Institutionalizing North America:1 NAFTA’s Committees and Working Groups2 Stephen Clarkson, Sarah Davidson Ladly, and Carlton Thorne Third EnviReform Conference, November 8, 2002 The EnviReform project has tackled various aspects of citizen mobilization in North America around issues of concern to civil society organizations (CSOs) such as environmental sustainability and labour standards in the context of the North American Free Trade Agreement. Originality for NAFTA was claimed as being the first trade and investment agreement not only to 1 Author’s Notes: We would like to thank the Department of Political Science and Dean Carl Amrheim of the Faculty of Arts and Science at the University of Toronto for their generous financial support in providing the research travel grant that allowed us to conduct our research in Washington, D.C. We would also like to thank the Woodrow Wilson International Center for Scholars for their hospitality during the week of April 6-12th. Thank you to all of the professionals who agreed to be interviewed —(David Decarme of the Department of Transportation, Professor Charles Doran of Johns Hopkins University, Jeffrey Dutton of the Office of NAFTA and Inter-American Affairs and the United States Department of Commerce, Carl Hartill of the Canadian Embassy, Carlos Rico of the Mexican Embassy, Kent Shigetomi of the Office of the United States Trade Representative, and Sidney Weintraub of the Centre for Strategic and International Studies). To all of the Canadian civil servants at the Department of Foreign Affairs and International Trade who took the time to complete our exploratory questionnaire, thank you. Thanks to Ricardo Del Castillo and Claude Carrière of DFAIT for their administrative support. 2 Our investigation of the NAFTA Committees and Working Groups was first conducted through reading secondary sources related to NAFTA and continental governance, as there was no secondary literature that addressed the significance of the NAFTA Committees and Working Groups themselves. In regard to primary source materials, we read all of the published reports listed on government websites such as the Canadian Department of Foreign Affairs and International Trade and the United States Trade Representative. In January-March, 2002, we sent out several questionnaires pertaining to the tasks and responsibilities undertaken by the Canadian representatives of the NAFTA Committees and Working Groups. This material was primarily used in an exploratory sense to help frame our subsequent interviews. In April 2002, we interviewed several prominent academics in Washington D.C. and American government officials that had either worked on the NAFTA Committees and Working Groups or had extensive experience with NAFTA issues. 1 endorse environmental sustainability but to create an institution – the Commission for Environmental Co-operation (CEC) – that would increase the weight of environmental considerations in trade policy matters within the continent. A similar claim was made for the North American Agreement on Labour Co-operation (NAALC). Considerable research efforts have been devoted –- including in EnviReform’s conferences in 2000 and 2001 – to the CEC and the NAALC’s effectiveness as vehicles for citizen participation in the governance of North America. On the whole, the scholarly consensus is that the labour side agreement has not increased the muscle of organized labour vis-à-vis the market forces unleashed by NAFTA. Assessments of the CEC have been more nuanced. Almost entirely ignored in discussions of the citizen side of North American governance has been the committee structure set up by NAFTA. to complete the agreement’s unfinished business or to pursue its agenda. Observers inspired by the European Union’s heavily institutionalized model tended to assume that the committees and working groups established by NAFTA would evolve, whether as more substantial structures for continental governance or as access points allowing CSOs to participate in the process of North America’s development. On January 1, 1994, the United States, Canada, and Mexico signed NAFTA and so created what was touted as the world’s largest free trade area. NAFTA was a comprehensive agreement that provided for the elimination of tariffs and reduction of non-tariff barriers and further established disciplines for governments in the areas of investment, services, competition policy and the temporary entry of business persons.3 NAFTA was proclaimed to be an “economic constitution” 4 for North America as it effectively created a supranational framework for all continental economic activity. It embodied a vision of continentalism insofar as the agreement was to exert significant control over the level and manner of economic integration between its member states and in this regard set the parameters for what would constitute legitimate policy in North America. A continentalist agenda was further signaled by both a formal and informal shift from the dual-bilateralism of the past to an envisioned trilateralism of the future. This emerging trilateralism was a product of the more general desire to both foster and formalize the ‘North American’ relationship. NAFTA goes further than any previous free trade agreement in that its reach extends “beyond the border.” In addition to tariff elimination, the agreement contains provisions on potential non-tariff barriers such as standards and includes new ‘deep integration’ issues such as 3 NAFTA Overview, Department of Foreign Affairs and International Trade, 2001. http://www.dfait-maeci.gc.ca/nafta-alena/over-e.asp 4 Stephen Clarkson, “Apples and Oranges” Prospects for the Comparative Analysis of the EU and NAFTA as Continental Systems, (Italy: European University Institute, 2000), 51. 2 investment and intellectual property. As a result, the agreement exerts extensive control over member states’ domestic policy and regulatory schemes. The far-reaching scope of the agreement led the signatory governments to anticipate challenges stemming from the corollary need for high levels of integration in many areas. While there was marked resistance on the part of all three states for corresponding political institutionalization, given the challenges presented by the scope of the agreement, some institutionalization was unavoidable. The resulting compromise was a meager and highly decentralized institutional structure designed to deal with a range of sector and policy-specific subjects, which were likely to arise from the complexity of this increased integration, and further to foster the co-operation necessary for implementation and administration.5 The permanent institutions created to oversee NAFTA’s functioning consist of the Free Trade Commission (ministerial level meetings), the NAFTA Secretariat (three national sections) and approximately 30 committees and working groups. The committees and working groups (CWGs), which make up the underbelly of NAFTA’s institutional structure, are concerned with a wide range of issues and were generally mandated to facilitate trade and investment. These institutions were intended to monitor and promote the successful administration of the North American Free Trade Agreement by establishing that a committee or working group oversee the implementation of a specific chapter of the agreement. The CWGs were, in essence, organized trilateral forums where civil servants from the three countries could exchange relevant information, resolve minor disputes, and discuss future liberalization. The structure and composition of the committees and working groups were intended to favour objective analysis and resolution of conflicts. The intent was to create institutions which were somewhat ‘de-politicized’ insofar as they would encourage the formation of epistemic communities of technical and sectoral experts who might be more inclined to favour long-term benefits over politically dangerous short-term costs.6 The CWGs fulfilled these criteria as they were seen to be conducive to the formation of small networks of working relationships and the consolidation of bodies of experts.7 They were mostly mandated within the text of the agreement to meet on average from one to four times yearly, or as issues arose, and to produce reports for the Free Trade Commission according to particular schedules established within the agreement. 5 Joseph McKinney, “NAFTA-Related Institutions in the Context of Theory” in Created From NAFTA: The Structure, Function, and Significance of The Treaty’s Related Institutions, (Armonk, New York: M.E. Sharpe Inc., 2000), 14. 6 McKinney, 22. 7 McKinney, 17. 3 The structure and mandates of these groups was significant insofar as they were trilaterally staffed institutions composed of government, and occasionally private sector, experts with mandates to evaluate and even help direct public policy within the member states. Despite the historical ‘hub and spokes’ configuration of Canada-U.S.-Mexico relations (Canada-U.S. and U.S.-Mexico) the NAFTA committees and working groups, in the spirit of a new continentalism, were created with a view to trilateralize relations, both acknowledging this new dynamic and hoping to foster its long-term developments. We will argue that in the eight years since the signing of the agreement, the committees and working groups have, on the most part, been under-utilized. As relatively insignificant continental institutions, they have little potential to serve as entry points into North American governance for civil society. This, weakness
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