Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Changes to NAFTA Procurred By Threats Would Be Without Legal Effect

When Senator Obama talked about renegotiating parts of NAFTA, he said:

“I will make sure that we renegotiate ... I think we should use the hammer of a potential opt-out as leverage to ensure that we actually get labour and environmental standards that are enforced.”

Both Senators Clinton and Obama made it clear that they would opt out of NAFTA if they do not get changes to environmental and labour enforcement.

I would like to point out that Article 51 of the Vienna Convention on the Law of Treaties (VCLT) provides:

The expression of a State' consent to be bound by a treaty which has been procured by the coercion of its representatives through acts or threats directed against him shall be without any legal effect."

The acts and threats referred to in Article 51 of the Vienna Convention do not have to be a threat that the troops coming home from Iraq will be redeployed to fight with Canada and Mexico. Article 52 of the Vienna Convention deals with the threat and use of force to obtain treaty agreement.

The statements made by Senators Clinton and Obama sound like threats directed at Canada and Mexico to me. 

Maybe Canada and Mexico may someday look back to February 26, 2008 and be able to say that and changes do not have any legal effect. 

If only they had said they would ask Canada and Mexico to be their friends at a negotiating table ...

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