Giving Direct Effect to NAFTA

Analysis of Issues

Armand de Mestral and Jan Winter January 12th, 2005

The authors start from the premise that NAFTA, as it exists, no longer responds to the North American economic reality. They thus propose giving “direct effect” to selected provisions of the agreement. Direct effect means that private citizens and corporations – not just governments – would have the right to enforce NAFTA’s provisions in domestic courts. The authors argue that this proposal gives front-line players a role in implementation and enforcement, allowing NAFTA to better reflect economic realities on the ground.

De Mestral (McGill University) and Winter (Free University of Amsterdam) say that their proposal is at once radical, in that is deprives governments of sole “ownership” of the treaty’s provisions, and cautious, in that it requires neither substantive change to the existing treaty nor new supranational rules or institutions. The authors justify using the domestic courts for dispute resolution arguing “they constitute the only North American governmental institutions whose powers can be expanded without encountering serious political objections.”