When trade negotiators and street protestors in Miami this week debate the impact of a Free Trade Area of the Americas on workers throughout the region, they should consider its precursor, the North American Free Trade Agreement, as a cautionary tale.
In 1993, when the fate of a free trade accord in North America hung in the balance, Mexico, Canada and the United States attached a side accord to NAFTA, committing themselves to promote basic labor rights in the region. Once the trade regime was in place, however, the labor commitment was largely forgotten.
It didn't have to be this way. The labor side accord of NAFTA was the most ambitious effort ever to address labor rights in a trade agreement. It committed the three countries to enforce their laws on freedom of association, nondiscrimination in the workplace, a minimum wage and other workers' basic human rights. It required them to promote high labor standards and provide access to fair labor tribunals. Most importantly, it granted them the authority to hold each other accountable for failing to meet these obligations.
Twenty-five complaints have since been filed under the accord, alleging widespread violations of labor law in all three countries. The violations include life-threatening health and safety conditions, denial of collective bargaining rights, firings for workers' organizing efforts, and mistreatment of migrant workers. Several major multinational corporations were named as violators.
Under the accord, when a government of one country receives a complaint of violations committed in one of the other two, it can investigate the charges. If it finds that the neighboring government had failed to fulfill certain of the obligations, it can levy fines or impose sanctions. The complaint process is convoluted, and the threat of fines or sanctions tame when compared with the legal remedies that NAFTA grants corporations and investors to enforce their commercial rights. Still, the accord represents a breakthrough in the area of international labor rights: a treaty with teeth.
Unfortunately, the governments have chosen not to bite. Not one of the complaints filed under the side accord has resulted in fines or sanctions. At most, the complaints have led to high-level consultations between governments, as well as local-level public meetings aimed at raising awareness about violations and discussing possible solutions.
To take one example, a Human Rights Watch investigation in 1997 found that employers in the maquiladora factories of northern Mexico routinely required women to undergo pregnancy tests as a means of screening out job applicants who might require maternity benefits once hired. Together with other groups, Human Rights Watch together filed a complaint accusing the Mexican government of failing to curb this discrimination based on pregnancy.
But after U.S. officials reviewed the complaint and confirmed the charges, the only action they took was to reach an agreement with the Mexican government to sponsor public "outreach sessions" on this issue. These sessions did little to end the practice, and Mexican maquiladoras continued to conduct illegal pregnancy testing.
The NAFTA side accord could have had a significant impact on labor rights if the governments had chosen to hold each other accountable. But they did not. And there is little reason to think that members of the proposed FTAA would do any better.
A lesson of NAFTA is that tariff benefits, once granted, are rarely withdrawn. Instead, countries reap the benefits of trade accords while ignoring their obligations to promote labor rights. What is needed is a mechanism that makes the reduction of tariffs contingent upon countries' labor practices. Tariff reductions should be granted to a country only after an independent panel of experts has determined that it has met its labor rights obligations under the accord.
Efforts to assure the protection of labor rights in a future Free Trade Area of the Americas would do well to borrow from the NAFTA recipe by incorporating the obligations that the labor side accord established. But they must be sure to include the missing ingredient needed to make those obligations count: accountability.
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**) Daniel Wilkinson is the author of "Silence on the Mountain: Stories of Terror, Betrayal, and Forgetting in Guatemala" (Houghton Mifflin).
