Games Without Frontiers: Investor Claims and Citizen Submissions Under the NAFTA Regime

Abstract

Considerable recent attention has focused on the challenges to state sovereignty presented by the growing influence of transnational corporations and non-governmental organizations. Two concrete manifestations of how international law is changing to reflect the emerging power of these non-state actors are the investor-state claim and the citizen submission processes, which are key components of the North American Free Trade Agreement regime. This Article considers how and to what extent these two processes affect the domestic sovereignty of the NAFTA Parties. It contends that although the sovereignty implications of the investor-state claim process are significantly more far-reaching, the Parties have exhibited a much greater concern over challenges to their sovereignty that they perceive as being posed by the citizen submission process. This asymmetrical, "protectionist" approach to engagement with civil society must be abandoned if states are to reap the potential benefits associated with trade and investment liberalization without jeopardizing their ability to regulate to protect public health and environment, and to manage domestic natural resources in a sustainable fashion.