Background Briefing

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Failure to Protect International Labor Rights Standards

D.R.-CAFTA does not require that countries’ labor laws comply with basic international norms that have been established under United Nations (U.N.) and International Labor Organization (ILO) conventions.  Instead, the accord merely includes hortatory provisions recommending that D.R.-CAFTA parties “strive to ensure” such compliance and “strive to ensure” that they do not “encourage trade or investment by weakening or reducing the protections afforded in domestic labor laws.”1  Even if a party violates these minimal provisions, it faces no meaningful consequences because the accord does not contemplate the possibility of fines or sanctions for such violations.

This standard falls short of the U.S.-Jordan Free Trade Agreement, which includes virtually identical provisions that require parties to “strive to ensure” that their laws meet international standards and “strive to ensure” that they do not waive or derogate from such laws, or even offer to do so, to encourage trade.  Importantly, however, unlike D.R.-CAFTA, the U.S.-Jordan agreement provides that a party can be subject to the accord’s dispute settlement mechanism and possible fines or sanctions for violating them.  D.R.-CAFTA supporters have attempted to minimize this difference between D.R.-CAFTA and the U.S.-Jordan accord.  For example, the United States Trade Representative (USTR) asserts that it is a “mischaracterization” to describe D.R.-CAFTA as “a step back from the ‘Jordan standard’ on labor rights.”2  Supporters of the accord claim that the “strive to” language that prefaces these commitments in both agreements creates provisions that are inherently so weak that they are, in all cases, virtually unenforceable.  They argue that the possibility for fines or sanctions if these provisions are violated under the U.S.-Jordan Free Trade Agreement is meaningless in practice because violation is difficult, if not impossible, to prove.3  This argument, however, does not stand up to scrutiny. 

For example, under the U.S.-Jordan Free Trade Agreement, if a party weakened its labor law protections to attract trade, perhaps by eliminating a minimum age for employment or banning trade unions in export sectors, the agreement would be violated and the party could face possible fines or sanctions.  Under D.R.-CAFTA, this is not the case.

The labor rights standard of D.R.-CAFTA also falls  short of the workers’ rights criteria of the unilateral trade preferences legislation currently governing trade between the United States and Central America and the Caribbean—the Generalized System of Preferences (GSP) and the Caribbean Basin Trade Partnership Act (CBTPA).  Both laws contain workers’ rights requirements that countries must meet to qualify as beneficiaries.  CBTPA requires that when designating a country a beneficiary, the U.S. president take into account “the extent to which the country provides internationally recognized worker rights.”4  GSP provides that no country shall be designated a beneficiary “if such country has not or is not taking steps to afford internationally recognized worker rights.”5 

These criteria have been interpreted as requiring both effective enforcement of national labor laws and that those laws meet international standards—and both are necessary if there is to be meaningful protection of internationally recognized worker rights.  If D.R.-CAFTA enters into force, it will supersede GSP and CBPTA.  As a result, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua will no longer face the possibility of heightened tariffs on their exports to the United States if their labor laws are shown to be inadequate or they weaken those laws still further. 

In response to analyses such as the above, supporters of D.R.-CAFTA have asserted that labor laws in Central America and the Dominican Republic already meet international standards.  As a result, they argue, the failure of D.R.-CAFTA to require the laws to comply with international norms is inconsequential.  To substantiate their claims, they frequently and incorrectly cite ILO studies of the region’s labor laws completed in 2003 and 2004.  USTR has erroneously described these studies as showing that the countries’ laws and constitutions “give effect to the ILO core labor standards.”6  The Central American D.R.-CAFTA countries and the Dominican Republic similarly have claimed that the studies show that their “constitutions and labor laws . . . are largely in conformity with the fundamental ILO obligations.”7

Central American and Dominican labor laws, however, do not meet international standards.  In fact, the 2003 and 2004 ILO studies also find no fewer than twenty-seven areas in which the laws fall short.8  In addition, in arriving at the twenty-seven areas, the ILO studies excluded from their analysis Salvadoran laws governing freedom of association and collective bargaining, as El Salvador has not ratified the two principle ILO conventions governing these rights:  ILO Convention 87 concerning Freedom of Association and Protection of the Right to Organise (ILO Convention 87) and ILO Convention 98 concerning the Right to Organise and Collective Bargaining (ILO Convention 98).9   

In December 2003, Human Rights Watch reported that El Salvador’s laws governing the right to freedom of association do not adequately protect this right.  Worker suspension procedures can be and are manipulated to target union members; union registration is excessively burdensome; and safeguards against anti-union dismissals and suspensions are weak and easily circumvented.10  The Human Rights Watch report documented that the weak labor laws impede and often prevent workers from exercising their right to freedom of association.  These laws have not been reformed since the report was released, and their negative impact on workers’ human rights has not changed.

For example, in December 2004, forty-one workers at the Acajutla Port in El Salvador signed up to form a union.  When the port operators employing the workers found out, they fired thirty-five of them.  Because these fired workers have no right under Salvadoran law to their jobs back for anti-union dismissal, the new union dropped from forty-one to six members—far below the minimum of thirty-five required to form a union.11  In January, the Ministry of Labor denied the union’s registration petition for having too few supporters.12 

White Paper on Labor from Central America and the Dominican Republic 

On April 5, 2005, the trade and labor ministers of the five Central American D.R.-CAFTA countries and the Dominican Republic published a so-called white paper, titled, “The Labor Dimension in Central America and the Dominican Republic: Building on Progress: Strengthening Compliance and Enhancing Capacity.”  The study asserts that several labor law reform proposals have been developed in the region and makes additional recommendations for legislative changes to improve workers’ rights protections.  The study fails to address key weaknesses in countries’ labor laws, however, including failing to suggest that El Salvador amend its labor laws to provide for reinstatement of illegally fired trade union leaders and members, as required by ILO Conventions 87 and 98.13  Furthermore, under D.R.-CAFTA, if these countries fail to amend their labor laws as promised, they will face no consequences.  Nor will they face any consequences if instead they choose to weaken workers’ rights protections to attract trade. 

[1] D.R.-CAFTA, arts. 16.1, 16.2(2).

[2] USTR, CAFTA Facts: The Facts About CAFTA’s Labor Provisions: Answering The Allegations of CAFTA Critics, February 2005, (retrieved April 8, 2005).

[3] See, e.g., Ibid.

[4] 19 USC Sec. 2703(b)(5)(B)(iii), (iv).

[5] 19 USC Sec. 2462(c)(7).

[6] USTR, CAFTA Facts: The Facts About CAFTA’s Labor Provisions: Answering The Allegations of CAFTA Critics, February 2005, (retrieved April 8, 2005); USTR, CAFTA Facts: Labor Laws in Central America and the Dominican Republic: The International Labor Organization Report, February 2005, (retrieved April 8, 2005).

[7] Working Group of the Vice Ministers Responsible for Trade and Labor in the Countries of Central America and the Dominican Republic, The Labor Dimension in Central America and the Dominican Republic: Building on Progress: Strengthening Compliance and Enhancing Capacity, April 2005, pp. viii, 2.

[8] Since the release of the studies over a year ago, only Nicaragua has enacted labor law reforms to address some of the identified weaknesses.

[9] The ILO studies were based on jurisprudence of the ILO Committee of Experts on the Application of Conventions and Recommendations.  As the committee only comments on a country’s application of those conventions and recommendations that it has ratified, the committee has not directly commented on El Salvador’s compliance with the two key ILO conventions on workers’ right to freedom of association and bargain collectively.  Therefore, no analysis on whether El Salvador’s domestic laws uphold these fundamental  rights was included in the studies.

[10] See Human Rights Watch, Deliberate Indifference: El Salvador’s Failure to Protect Workers’ Rights (New York, NY: Human Rights Watch, December 2004).

[11] The ILO has repeatedly found that El Salvador’s law requiring a minimum of thirty-five workers to form a union violates international standards.  See, e.g., ILO, Complaint against the Government of El Salvador presented by Communications International (CI), Report No. 313, Case No. 1987, Vol. LXXXII, 1999, Series B, No. 1, para. 117(a).

[12] E-mail message from Gilberto García, director, Center for Labor Studies and Support (CEAL), to Human Rights Watch, February 19, 2005; e-mail messages from Victor Aguilar, director, Union Coordinator of Salvadoran Workers (CSTS), to Human Rights Watch, February 27 and April 2, 2005.

[13] See International Labour Conference, 1994, Freedom of association and collective bargaining: Protection against acts of anti-union discrimination, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, Geneva, 1994, Report III (Part 4B),  paras. 214, 219-221.

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