Trade Agreements and Environment in Latin America
| Date | 01 April 2022 |
| Author | Dino Delgado Gutiérrez |
42022 ENVIRONMENTAL LAW REPORTER 52 ELR 10311
by Dino Delgado Gutiérrez
SUMMARY
Inspired by the work of the Secretariat for Submissions on Environmental E nforcement Matters of the United
States-Peru Trade Promotion Agreement, this Article surveys other environmental submission mechanisms
in Latin America, looking at similarities and differences. Beyond the criticisms made of these processes,
they have value as independent international bodies to review the effective enforcement of a country’s
domestic environmental laws, and provide opportunities to reach out to civil society about legitimate con-
cerns. Two decades after the first submission in the context of the North American Free Trade Agreement,
more than 150 submissions have been filed with all the secretariats. The Article highlights lessons learned,
and proposes recommendations that may help these mechanisms continue to grow for the benefit of civil
society and governments.
TRADE AGREEMENTS AND
ENVIRONMENT IN LATIN AMERICA
Dino Delgado Gutiérrez is a Peruvian environmental lawyer, and former Executive Director of the Secretariat
for Submissions on Environmental Enforcement Matters of the United States-Peru Trade Promotion Agreement.
At present, the link between trade and the environ-
ment is indisputable. Traditionally, rules regulat-
ing trade developed somewhat independently of
those aimed at protecting the environment. Nonetheless,
over the past few decades, the interaction bet ween the two
has become more evident. While some attention has been
paid to examples of this relationship in international a gree-
ments, such as the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, this Article
analyzes some regional or bilateral trade promotion agree-
ments (TPAs) that include environmental obligations that
must be complied with by signatory States.
In particula r, I discuss relatively innovative mechanisms
that empower civil society and contribute to linking trade
policies, investments, and project implementation with
environmental policies, norms, and standards. For a little
over two decades, these citizen-driven mechanisms have
been included in the texts of various TPAs between the
United States and countries in North, Central, and South
America to contribute to the eective enforcement of envi-
ronmental laws.
Despite the fact that the United States has signed sev-
eral TPAs that include environmental obligations (such as
those signed with Australia, Bahrain, Chile, Jordan, and
Morocco, among others), only a few have included mecha-
nisms that provide civil society w ith the possibility of ling
a submission when they consider that one of the Parties
to the agreement is not eectively enforcing its environ-
mental laws. ese mechanisms a re intended to oer any
natural person or legal entity t he possibility of approaching
an independent international body to address an environ-
mental concern.
On the basis of public information on the operation of
the secretariats that carry out the public submission pro-
cesses, as well a s the submissions led, I examine the trends
and uses of these mechani sms in the Latin America region.
Specically, the Article ana lyzes the following mechanism s:
• Submissions on Enforcement Matters (SEM) Unit
of the United States-Mexico-Canada Agreement
(USMCA)
• Secretariat for Environmental Matters under the Do-
minican Republic-Central America-United States
Free Trade Agreement (CAFTA-DR)
• Secretariat for Submissions on Environmental En-
forcement Matters (SEEM) under the United States-
Peru TPA
• Secretariat for Environmental Enforcement Matters
under the United States-Panama TPA
• Secretariat for Environmental Enforcement Matters
under the United States-Colombia TPA
Author’s Note: The opinions expressed in this document are
exclusively personal. I am grateful for the valuable com-
ments and suggestions of Paolo Solano, Jorge Guzman,
Marco Pacheco, Bethzaida Carranza, and David Marin.
My special thanks to Silvana Baldovino and the entire Bio-
diversity and Indigenous Peoples team of the Peruvian So-
ciety for Environmental Law for their continuous support.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
52 E LR 10 312 ENVIRONMENTAL LAW REPORTER 42022
I. Background
In January 1994, the North American Free Trade Agree-
ment (NAFTA) between Canada, the United States, and
Mexico entered into force.¹ Immediately after NAF TA, the
North American Agreement on Environmental Coopera-
tion (NAA EC), signed by the same countries, entered into
force as a parallel agreement to NAFTA.² Since the entry
into force of the NAAEC , the United States has negotiated
TPAs that include the creation of bodies to address sub-
missions from natural persons or legal entities that believe
that one of the countries of the agreement is not eectively
enforcing its environmental laws.
In order to implement these measures in the various
TPAs, bodies with dierent scopes and levels have been
created. However, the processes they carry out have sig-
nicant similarities. e following is a brief review of the
agreements in the region that include secretariats t hat per-
form the public submission processes.
A. North America Region
As mentioned above, the NAAEC entered into force in
1994, thus becoming an environmental agreement with
a close relationship to NAFTA. e consequent coopera-
tion among the countries encouraged the protection and
improvement of the environment, su stain able develop-
ment, and strengthening a nd enhancement of environ-
mental regulations, among other aspects.
e NAAEC incorporated, in its Article 14, a process
called “Submissions on Enforcement Matters,” which
provides any person or organization with no governmen-
tal connection, resident or based in Canada, the United
States, or Mexico, a process through which they can le
a submission if they believe that a Party to the agreement
is failing to enforce its environmental laws.³ erefore,
“NAAEC’s three Parties created this entirely new process
to give the public a voice in international environmental
oversight through establishing a novel international ‘soft’
enforcement mechanism.”
Article 8 of the NA AEC established the Commission for
Environmental Cooperation (CEC), which is to comprise a
council, a secretariat, and the Joint Public Advisory Com-
mittee. e council is the governing body of the CEC, a nd
is composed of the highest-ranking environmental authori-
ties (cabinet-level or equivalent representatives) of Canada,
Mexico, and the United States. As a governing body, the
1. North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 289
[hereinafter NAFTA].
2. North American Agreement on Environmental Cooperation, Sept. 13,
1993, 32 I.L.M. 1480 [hereinafter NAAEC].
3. C P C A [C E-
C], D P P-
R A E L A
[G S E M U A-
14 15 N A A E-
C] (2013).
4. Tracy Hester, Designed for Distrust: Revitalizing NAFTA’s Environmental
Submissions Process, 28 G. E’ L. R. 29, 32 (2015).
council over sees the implementation of the NA AEC a nd
serves as a forum for discussing environmental issues.
e CEC Secretariat provides technica l, administrative,
and operational support to the council. Within the secre-
tariat is the SEM Unit, which is responsible for receiving
and processing submissions.
e rst submission was led in 1995. To date, a total of
101 submissions have been led by way of this mechani sm.
Of the total number of submissions, 33 are from Canada,
13 from the United States, and 53 from Mexico. Addition-
ally, two submissions are from Canada and the United
States together. It should be noted that there are submis-
sions involving more than one country. Of the total num-
ber of submissions, 24 factual records have been prepared.
e new USMCA, which entered into force on July
1, 2020, does not produce changes in broad terms with
respect to the submissions for the eective enforcement of
the Parties’ environmental laws.
B. Central America-Dominican Republic-United
States
e free trade agreement between Cost a Rica, the Domin-
ican Republic, El Salvador, Guatemala, Honduras, Nicara-
gua, and the United States (Dominican Republic-Central
America Free Trade Agreement (CAFTA-DR)) entered
into force for the countries Party to the agreement on vari-
ous dates in 2006.
Article 17.7 of the CAFTA-DR, “Submissions on
Enforcement Matters,” sets forth in paragraph 1 that “[a]
ny person of a Party may le a submission asserting that a
Party is fail ing to eectively enforce its environmental laws.
Such submissions shall be led with a secreta riat or other
appropriate body (‘secretariat’) that the Parties designate.”
In order to implement Articles 17.7 and 17.8 of the
CAFTA-DR, the Parties signed the “Agreement Estab-
lishing a Secretariat for Environmental Matters Under the
Dominican Republic-Central A merica-United States Free
Trade Agreement.” rough Article 1 of this agreement,
the Parties established the Secretariat for Environmental
Matters—the unit in cha rge of receiving and processing
submissions—located in the Secreta riat for Central Ameri-
can Economic Integration’s (SIECA’s) facilities, headquar-
tered in Guatemala City.
According to Claudia Ortiz:
Submissions are not an environmenta l “complaint” with
the purpose of sanct ioning the State or a company that
5. Commission for Environmental Cooperation, Registry of Submissions,
https://www.cec.org/submissions-on-enforcement/registry-of-submissions/
(last visited Oct. 2021).
6. United States-Mexico-Canada Agreement, Nov. 30, 2018 (entered into
force July 1, 2020) [hereinafter USMCA].
7. Dominican Republic-Central America Free Trade Agreement, May 28,
2004, 43 I.L.M. 514 [hereinafter CAFTA-DR].
8. Agreement Establishing a Secretariat for Environmental Matters Under the
Dominican Republic-Central America-United States Free Trade Agreement,
July 27, 2006 (entered into force Aug. 26, 2006).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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