Basic Info and Online Sources for NAFTA and CAFTA Research
(North American Free Trade Agreement and United States-Dominican Republic-Central American Free Trade Agreement) [1]

By Francisco Avalos and Maureen

Francisco A. Avalos joined the James E. Rogers College of Law in 1982 as the Foreign and International Law Librarian. His area of expertise is Latin American legal research with an emphasis on Mexico. He has written extensively and made many presentations in this area of the law. Mr. Avalos has served as Secretary-Treasurer and Chairperson of the Foreign, Comparative, and International Law SIS of the American Association of Law Libraries, and served on the Index to Foreign Legal Periodicals Advisory Committee. His current research interests include legal translating and the pre-Columbian legal systems of the Americas. He currently teaches First Year Legal Research and U.S. Legal Research for Foreign Students. Mr. Avalos also serves as a special consultant to the National Law Center for Free Inter-American Trade.

Maureen Garmon is Faculty Services Librarian at the Law Library, Rogers College of Law at the University of Arizona. She has participated in first year and intermediate legal research instruction at the College and is an active member of the American Association of Law Libraries. Before joining the Law Library in 1997, Ms.Garmon worked as a law firm librarian. She holds an MLS from the University of Arizona.

Published October 2006
Read the update!

Introduction

The North American Free Trade Agreement has been in effect for over twelve years as of the publication of this research guide, and information regarding its successes and failures abounds in print and on the internet. Since CAFTA is not yet in force among all parties, the researcher may find it hard to locate complete information from any one source. The web site of the United States Trade Representative is a good place to start for basic documents related to CAFTA.

This guide focuses on online sources for primary and secondary materials for both agreements.

NAFTA

I. Background

The North American Free Trade Agreement was entered into by the United States, Canada and Mexico to establish a regional trade area for the free movement of goods and services among the three nations. Signed by the leaders of all three countries in December of 1992, it took effect on January 1, 1994 after the passage of implementation legislation in the individual countries. Additional side agreements on labor (NAALC-North American Agreement on Labor Cooperation) and the environment (NAAEC-North American Agreement on Environmental Cooperation) were also signed in 1993, as was a bilateral agreement between the United States and Mexico on environmental cooperation (BECA-Border Environmental Cooperation Agreement).

NAFTA was preceded by a previous attempt on the part of the US and Canada to construct a formal free trade agreement between those two nations, namely the U.S.-Canada Free Trade Agreement (CFTA , 27 I.L.M. 281 (1988)), which at the time it was signed was the largest and most comprehensive trade agreement between two nations. CFTA went into effect in 1989 and, though now suspended due to the existence of NAFTA, provided a basis for much of the latter agreement. See Sec. 107 of the NAFTA Implementation Act for language regarding suspension of the US-Canada Free Trade Agreement as long as NAFTA is in effect and both nations continue to be parties. [2]

II.NAFTA Text

The full-text of the agreement can be found on the web site of the NAFTA Secretariat and is available in International Legal Materials: 32 I.L.M.289 (Parts 1-3) and 32 I.L.M. 612 (Parts 4-8). The Secretariat web site also contains a comprehensive list of NAFTA terms.

III. Side Agreements

The 1993 side agreements on the environment and labor were created to ensure that concerns in both of those areas would be addressed, as the actual NAFTA agreement did not treat those areas in any detail.

A. NAAEC (North American Agreement on Environmental Cooperation)

32 ILM 1480 (1993) – the NAAEC side agreement is intended to complement environmental provisions of NAFTA and to formally commit each party to ongoing enforcement of its own environmental laws. The text of the NAAEC can be found on the web site of the Commission for Environmental Cooperation (CEC).

B. NAALC (North American Agreement on Labor Cooperation)

32 ILM 1499 (1993) – The NAALC was created to address labor issues among the three countries. Like the environmental side agreement, it encourages trilateral cooperation, and, through its Commission for Labor Cooperation (CLC), helps enforce existing domestic labor laws. The text of the labor side agreement can be found on the NAALC web site.

C. Understanding Between the Parties to the North American Free Trade Agreement Concerning Chapter Eight-Emergency Action

32 ILM 1519 (1993) – Establishes additional procedures regarding Chapter Eight of the Agreement. Sets up a Working Group to deal solely with the administration of emergency action proceedings. The Working Group reports to the Commission.

D. BECA (Border Environment Cooperation Agreement

32 I.L.M. 1547 (1993) – An additional environmental agreement signed by just two parties – the United States and Mexico – “to conserve, protect and enhance the environments of each Party through an environmental infrastructure…,” the BECA set up a commission (BECC-Border Environment Cooperation Commission) and funding agency (NADB-North American Development Bank) to prioritize, develop and fund solutions to environmental problems along the US-Mexico border. The text of the Border Environment Cooperation Agreement, or Charter, can be found on the NADBank web site.

IV.NAFTA Primary Institutions

A. Free Trade Commission

The central institution created by the agreement is the Free Trade Commission (FTC), which consists of Cabinet-level ministers, or their designees, from all three countries. It is the responsibility of the FTC to provide direction to and oversight of the many working groups, committees and other bodies involved in direct implementation of NAFTA. Detailed information on FTC ministers and their specific functions under NAFTA can be found on their country-specific web sites:

There are also NAFTA Coordinators as well as various committees and working groups who help facilitate implementation of the act. The Coordinators are the three senior trade department officials selected by each country to oversee direct day-to-day management of NAFTA provisions. Under the terms of the agreement, the FTC meets at least annually.

B. Secretariat

In addition to the Commission, a Secretariat was established under Art. 2002 of NAFTA to provide administrative support to the FTC and to any working groups committees, etc. established by that body. The FTC Secretariat plays a role in the NAFTA dispute resolution process under Chapters 19 & 20, providing administrative support to review panels. The central web site of the Secretariat provides an easy access point to the country-specific web sites of all three countries and contains the full text of the treaty and side agreements.

V. Institutions Created by Side Agreements

A. NAAEC

Commission for Environmental Cooperation (CEC) – Established to address environmental concerns within the trade area, the CEC has its own Council (governing body), Secretariat (provides technical and administrative support to the Council and to the committees and groups established by it), and JPAC (Joint Public Advisory Committee for citizen input from all three countries). Detailed information on these bodies and their specific functions can be found on the CEC web site.

B. NAALC

Commission for Labor Cooperation (CLC) – The CLC addresses labor issues through its governing and policy-making body, the Council of Ministers (labor ministers of the three countries), a Secretariat (to provide technical and administrative support), and three National Administrative Offices (NAOs) set up by the NAALC within each country’s labor department or labor ministry. These NAOs are responsible for the dissemination of information to and from each other and to/from government agencies within their respective countries. They are also expected to respond to and publish the public communications they receive on labor law matters arising in the territory of any of the other signatory countries. For a detailed discussion of NAALC institutions, functions, reports, and papers, etc., go to the home page.

Note: as of December 17, 2004, the U.S. NAO changed its name to the Office of Trade Agreement Implementation (OTAI) to reflect its expanded range of responsibilities under various other bilateral and multilateral trade agreements.

C. BECA

Border Environment Cooperation Commission (BECC) and North American Development Bank (NADB). These two organizations work closely together to identify and address the most serious environmental issues confronting the border region. The Commission, with offices in both El Paso, Texas and Ciudad Juarez, Mexico, selects and certifies much needed infrastructure projects which are then recommended to the NADBank for possible funding. The two institutions are governed by a shared Board of Directors consisting of ten members, five from each country, with an annually rotating chairmanship. Detailed information about each institution, objectives, current projects, and reports, see their individual web sites: BECC and NADB.

VI. Dispute Settlement

A. Formal and Informal Procedures under NAFTA

There are both formal and informal channels for dispute settlement under NAFTA. Chapter 20 of the agreement provides procedures for the settlement of disputes, generally. These apply unless there are more specific provisions elsewhere in the agreement. Chapter 14 (Financial Services) establishes a Financial Services Committee to participate in disputes relating to cross-border trade in the financial services sector. Chapter 19 is another well known avenue for resolution but is limited to disputes involving antidumping and countervailing duties. Chapter 11 of NAFTA (Investment) has its own dispute settlement provisions, requiring the disputants to attempt settlement ‘through consultation or negotiation.’ In cases of disputes relating to the environment or labor, there are separate settlement provisions and procedures in the side agreements for resolution of those issues.

In addition, disputes may be settled through various working groups, committees and other related government entities.

B. Role of the Secretariat

The Secretariat performs a role in dispute settlement, particularly under Chapters 19 and 20 of NAFTA by providing administrative support to the review panels involved in rendering the final decision in a matter. For an overview of dispute resolution provisions of various NAFTA chapters, rules of procedure, and a roster of current panelists from each country, see the official Secretariat web site. The full-text of panel decisions is also available on this site.

VII. NAFTA Primary Documents/Implementation Acts

A. United States

B. Canada

C. Mexico

  • Under the Mexican constitution, the Executive office is given the power to enter into and execute international treaties after approval by the Senate. The announcement of NAFTA treaty implementation is as follows: El Tratado de Libre Comercio en America del Norte, Executive Decree of December 14, 1993, Diario Oficial (December 20, 1993).

CAFTA

I. Background

The Central American Free Trade Agreement was entered into by the United States and five Central American countries – Costa Rica, Honduras, Nicaragua, El Salvador, and Guatemala – on May 28, 2004 to establish a tariff-free area for the exchange of goods and services among those countries. The United States had independently entered into separate trade liberalization talks with the Dominican Republic, and that country was later included in the original CAFTA agreement which was subsequently signed by the trade representatives of all seven countries on August 5, 2004. As with NAFTA, the Central American Agreement has generated passions both pro and con. There has been serious opposition to CAFTA during both the process of ratification and– for some of the parties— during the implementation process as individual member countries try to hurriedly make changes to existing domestic laws and constitutions as required by the Agreement. For a few of these Central American countries, there have been additional requirements to be met which were not originally included in the text of the Agreement.

Areas of primary contention have included intellectual/industrial property, labor and the environment, and the protections afforded non-state investors. CAFTA has been strongly opposed by large segments of the public in several of the signatory countries. In fact, it has still not been ratified by Costa Rica as of June 30, 2006. And the Dominican Republic, which has ratified, has yet to set a date for implementation. Dates of ratification in all CAFTA countries are indicated below, along with effective dates where available.

Country

Ratification

Date Effective

El Salvador

Honduras

Guatemala

Dom. Rep

Nicaragua

Costa Rica

United States

12/17/2004

3/3/2005

3/10/2005

9/2005

10/11/2005

Not ratified

7/27/2005

3/1/2006

4/1/2006

7/1/2006

Not implemented

4/1/2006

Not implemented

See note [3]

II. CAFTA Text

The full text of the agreement can be found in both English and Spanish on the web site of the General Secretariat of the Organization of American States, which serves as official depositary for CAFTA documents: (currently not available under multilateral treaties and agreements which is current only to 2003. The OAS SICE database does have the text as received from the Office of the United States Trade Representative. It can also be found directly on the USTR web site (English). ILM citation: 43 ILM 514 (2004) (draft)

III. CAFTA Primary Institutions

A. Free Trade Commission (FTC)

As with NAFTA, the CAFTA agreement establishes a Free Trade Commission (FTC) consisting of cabinet-level representatives or their designees, whose responsibilities broadly encompass implementing and interpreting provisions of the agreement, supervising the work of the various working groups and committees set up under its authority, and establishing rules of procedure for use by arbitration panels in the dispute settlement process. Free Trade Agreement Coordinators (one per country), set up under Article 19.2, assist the Commission with planning activities, including setting agenda content for annual meetings.

Annexes 19.1 and 19.2 list the location of Commissioners within each signatory’s governmental structure as well as institutional locations for the Coordinators.

B. Committee on Trade Capacity Building

Article 19.4 of the Agreement recognizes the need for certain social and economic reforms in the Central American countries before the kind of trade-driven economic growth envisioned under CAFTA can take place. The Committee on Trade Capacity Building was designed to jump start such reforms by prioritizing, monitoring, and soliciting outside funding for identified trade capacity building projects in the participating countries. National Action Plans for trade capacity building under CAFTA can be found on the web site of the US Trade Representative:

IV. Labor and Environment

Unlike its NAFTA predecessor which did not contain chapters relating to labor and environmental issues in the text of the treaty itself (these were subsequently addressed through side agreements), CAFTA includes individual chapters relating to each of these issues (Chapters 16 & 17, respectively), and adds significantly to the labor and side agreements attached to NAFTA. Separate institutions have been established to implement and enforce these two sections.

A. Labor Affairs Council

Under Chapter 16, CAFTA signatories agree to enforce their own domestic labor laws and also reaffirm their commitment to principles of the International Labor Organization (ILO). Article 16.4 sets up a Labor Affairs Council, which consists of cabinet level representatives from each member country. Its primary function is to implement labor provisions of the Agreement. It also oversees the activities of the Labor Cooperation and Capacity Building Mechanism (Article 16.5). Each country is required to designate a special office within its labor ministry as a contact point for the other parties and for the public.

The existing Inter-American Development Bank (IDB), an OAS entity, provides funding for development projects in CAFTA countries which relate to trade building capacity. The CAFTA portion of the web site lists CAFTA projects with links.

B. Environmental Affairs Council

Article 17.5 of the Agreement establishes an Environmental Affairs Council with a General Coordinator and permanent staff having environmental expertise and experience and who operate independent of any of the signatory country governments in enforcing environmental provisions of the agreement. The Council operates under the existing Secretariat for Central American Economic Integration (SIECA).

All parties signed the Environmental Cooperation Agreement on February 18, 2005 with the stated objective “… to cooperate to protect, improve and conserve the environment, including natural resources (Article II).” For the text of this environmental agreement and detailed information on the institution set in place by it, namely the Environmental Cooperation Commission (ECC), see the Foreign Trade Information System at OAS.

The inaugural meeting of the EAC was held in Guatemala City, Guatemala on May 24, 2006. Goals included setting up a Secretariat for Environmental Matters, selecting a General Coordinator to be in place by mid-July 2006 and for the office to be operational by September 1, 2006. In addition, members reviewed the legal steps necessary for each member country to bring into force the additional ECA agreement. The official communiqué regarding the meeting is here on the web site of the US Embassy for Guatemala.

V. Dispute Settlement

Chapter 20 of the Agreement deals with dispute settlement. As with NAFTA, the parties are encouraged to attempt to resolve disputes through cooperation and consultation before resorting to more formal complaint avenues. In the case of complaints relating to labor or the environment, there are dispute resolution provisions included in those specific chapters. The complaining party may summon the resources of the Free Trade Commission for either resolution, or arbitration by established arbitration panels, if the consultation period set out in Chapters 16 and 17 fails to resolve the dispute. See Chapter 20 of the Agreement for a full description of the dispute settlement process.

VI. Intellectual Property

Chapter 15 of CAFTA deals with IP regulation and enforcement. It requires all parties to accede to an assortment of IP-related international agreements in areas of copyright, patent, and trademark with various dates of accession in order for CAFTA to take effect. It also contains restrictions on pharmaceuticals marketing. [4]

VII. Primary Documents/Implementation Acts

United States

Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, Pub. L. 109-53, 119 Stat. 462, 19 U.S.C. 4001 et seq.(August 2, 2005) The free full-text of the implementation act is available at the Government Printing Office web site:

For full-text of House Report 109- 182, which includes a dissenting view of CAFTA’s provisions, see the Thomas web site, where the text of the Act is broken down into separately printable parts.

Also see the GPO web site, where the entire document is available in pdf format.

Internet Resources for NAFTA and CAFTA

A. Research Guides

B. Government Web Sites

  • NAFTA Secretariat – The official web site of the Secretariat contains primary NAFTA documents in English, French and Spanish.
  • US International Trade Commission (USITC) – Independent agency performing trade industry research and analysis and reports on the impact of various trade agreements on US industry. Publishes two trade and economics journals online: International Economic Review and Industry Trade and Technology Review, both of which offer online content for download. It also conducts trade remedy investigations and issues reports, contains updated information on Harmonized Tariff Schedules (HTS) and – as a CAFTA resource — updates those schedules as CAFTA countries are brought fully into the agreement and their tariff status is altered.
  • US Customs Border Protection (CPB) – Part of the Department of Homeland Security, this web site has a link to NAFTA definitions and to some interactive customs forms, including Certificate of Origin forms for Canada and Mexico. Also contains legislative history documents for NAFTA.
  • US Department of Commerce, International Trade Administration, Market Access and Compliance – This office overseas all 250+ trade agreements to which the US is a party and works to ensure access to foreign markets for US businesses. It also investigates compliance issues through its Trade Compliance Center, which provides assistance on compliance issues . The Center has links to the full text of all US trade agreements currently in force, including a listing of FTAs. .
  • US Export Portal – This is the official US export presence on the web. It includes annual and quarterly trade statistics broken down by country, date, commodity, etc. It also has pages dedicated to specific free trade agreements with links to forms and full text of the agreements. Pages for NAFTA and CAFTA are also here.
  • Canadian Department of Foreign Affairs and International Trade – Offers services to Canadian businesses operating in global markets. There is a section devoted to NAFTA information and documents.
    • Canadian International Trade Tribunal – Primary trade-related tribunal in Canada. Among other responsibilities, it conducts inquiries into complaints involving Canadian government compliance in procurement under NAFTA Chapter 10.
  • Secretaria de Economia (Ministry of the Economy, Mexico) – In both Spanish and English, this official Mexican NAFTA site includes documents in both languages, much of it from the Diario Oficial, the official publication for all legislation passed by the Mexican parliament. The Ministry also has a web presence in Canada and the US.
  • Trade Information Portal of Honduras (Secretary of Industry and Commerce) – Mainly in Spanish but main page is translated into English.
  • Ministerio de Economia – Gobierno de El Salvador – (Spanish only)
  • Office of Hazardous Materials Safety – This is the web page for NAFTA and the transportation of hazardous materials. Included are administrative decisions, table of standards, special permits, certification requirements, letters of interpretation, guidelines and norms.
  • United States Department of Agriculture (FASonline) – The USDA’s Regional Trade Agreements section has links to both NAFTA and CAFTA documents with emphasis on agricultural and animal products reports and commodities fact sheets.
  • Canada Border Services Agency – Contains information for importers and exporters as well as border security information that may affect cross-border traffic.

C. Organizational Web Sites

  • Foreign Trade Information System – This is the trade database of the Organization of American States (OAS) and contains primary documents relating to all treaties and agreements between/among the nations of the Americas. Documents are available in English, French, Spanish and Portuguese. NAFTA and CAFTA documents are also available.
  • North American Development Bank – Contains quarterly status reports on border infrastructure projects it has funded under NAFTA mandate.
  • Commission for Environmental Cooperation – The web site for all environmental issues dealing with NAFTA. Content is available in English, French and Spanish.
  • Commission for Labor Cooperation – Contains information dealing with the labor portions of NAFTA.
  • Latin American Network Information Center – Has links to trade data for all Latin American countries, including links to regional reports, US embassies in Latin American countries, and business advocacy groups.
  • World Trade Organization (WTO) – An important web site to visit when researching NAFTA and all issues associated with free trade in the Americas. All of the official legal documents related to NAFTA can be found here.
  • Washington Office on Latin America, Promoting Human Rights, Democracy, and Social and Economic Justice in Latin America – This site contains the text of CAFTA plus position papers, testimony and secondary materials. It also contains the legislative history of CAFTA and some NAFTA reports.
  • Center for US-Mexico Studies – This site covers more than NAFTA issues but the NAFTA resources are complete with materials offered in both English and Spanish. Good for academic research on NAFTA and related trade issues with Mexico.
  • Consejo Empesarial Mexicano de Comercio Exterior, Inversion y Tecnologia, A.C., – As the name implies, this site is dedicated to foreign trade and investment in Mexico. The site has more than NAFTA materials. It has materials dealing with all of the free trade agreements to which Mexico is a party. This is a comprehensive NAFTA site and is an excellent resource for the Spanish version of NAFTA materials.

D. Proprietary

  • BNA International Trade Reporter – available in print and online by subscription, this title tracks current developments in international trade, including NAFTA updates and CAFTA developments.
  • Lexis – Has the text of the NAFTA agreement and the side agreements. Go to International Law—Treaties and International Agreements—North American Free Trade Agreement. Or use International Trade as the starting point and follow the above. Legislative history is available from Federal Legal-US—Legislative Histories and Materials—US-CIS Legislative Histories.
  • Westlaw – Has a NAFTA database with the text of the agreement and sides as well as the implementation act, Congressional testimony and reports. The NAFTA-LH database contains legislative history documents; NAFTA-BIP contains the Binational Panel decisions; and the NAFTA-AWARDS database has the text of arbitration settlement awards.
  • National Law Center on Inter-American Free Trade – The National Law Center offers the InterAm database, a collection of trade and finance related laws and regulations of several countries in the Americas. While searching the database is free, resulting full text documents are available to subscribers only although non-subscribers may purchase individual search result documents. There are also a few journal/newsletter publications.
  • NaftaClaims.com – (formerly NAFTALaw.org) Privately owned web site of attorney Todd Weiler. Contains a collection of full-text documents related to NAFTA claims listed by individual country and claimant. Also has past issues (current to November 2005) of subscription email news updating service NAFTA News.

E. Online Newsletters & Journals-NAFTA/CAFTA

  • Inside US Trade – Subscription-based journal from World Trade Online. Also available on Lexis. Excellent source for keeping abreast of CAFTA and NAFTA developments. Weekly.
  • Latin American Weekly Report – Subscription based, but contains several topical newsletters, including Latin American Economy and Business (monthly), and Latin American Regional Reports.
  • NAFTA News – (most recent newsletter on the web site is from 11/2005)

F. Useful Reports and Assessments

[1] The CAFTA agreement is variously referred to as DR-CAFTA or CAFTA-DR or US-DR-CAFTA. For simplification it will be referred to as CAFTA throughout this document.

[2] For a current review of the status of US-Canada trade relations in both NAFTA and CFTA, see: http://canada.usembassy.gov/content/can_usa/trade_crs_050206.pdf

[3] As the target date of January 1, 2006 for implementation for all CAFTA-DR countries was not met, the US moved to a rolling schedule of implementation dates with individual countries implementing as they make required changes to their domestic laws and are ‘certified’ by the US. See the US Trade Representative web site for links to various Presidential Proclamations announcing in force dates.

[4] For an idea of how IP provisions may affect access to basic services in developing Central American economies, see the letter from US Congressmen to US Trade Rep Rob Portman regarding IP and Guatemala specifically: http://www.cptech.org/ip/health/trade/cafta/representatives04072006.pdf