According to the precautionary principle, the lack of full scientific certainty should not preclude measures to prevent environment degradation. This principle has been incorporated into numerous international instruments and is approaching the status of customary international law. Moreover, the Canadian government has embraced the principle and the Supreme Court of Canada recently confirmed it as a basis of environmental policy in 114957 Canada Ltée (Spraytech, Société dʼ’arrosage) v. Hudson (Town). This paper examines the ability of the precautionary principle to actually function as a guide for environmental policy in light of Canadaʼs international trade obligations. In particular, it considers Canadaʼs commitments under NAFTA. Under NAFTA a wide array of possible government activity can be deemed a “trade barrier” and, under the Chapter 11 investment provisions, governments who enact such barriers are subject to binding commercial arbitration. The author critically analyzes the reasoning and implications that follow from two recent Chapter 11 cases: Ethyl Corporation v. Canada and Metalclad Corporation v. Mexico. Overall, the author concludes that despite its embrace by the international community, the Canadian government and the Supreme Court, Canada’s commitments under NAFTA effectively undercut the ability of the precautionary principle to serve as a basis of environmental policy.
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Paul Guy, "Throwing Caution to the Wind: The Precautionary Principle, NAFTA and Environmental Protection in Canada" (2004) 13 Dal J Leg Stud 187.