Since 1992, when the peace accords ending its twelve-year civil war were signed, the focus of El Salvador’s economic strategy has gradually shifted from the “reconstruction and expansion of basic infrastructure” to export growth and attracting foreign investment.435 Over the past decade, its exports have increased nearly 250 percent, climbing to U.S. $2.99 billion in 2002.436 Since 2001, the country has entered into free trade agreements with Mexico, the Dominican Republic, Chile, and Panama.437 The number of free trade zones in El Salvador has also jumped from two in 1992 to sixteen in 2002.438 El Salvador’s maquilas now employ over 60,000 workers and account for roughly 59 percent of all exports, approximately 95 percent of which are textile or textile related.439
The United States has been a key component of El Salvador’s post-war economic strategy. The United States is El Salvador’s largest trading partner, importing roughly 67 percent of the country’s exports.440 Its citizens own more factories in El Salvador’s free trade zones than nationals from any other country, controlling roughly 34 percent of all facilities.441 And if negotiations, begun in January 2003, for a U.S.-Central America Free Trade Agreement result in an accord, these percentages will likely continue to climb.
In the context of its ever-growing trade with and foreign direct investment in El Salvador and, more generally, Central America, the United States has taken steps to protect and promote workers’ human rights. Unfortunately, the steps to date have been inadequate. This chapter first describes and evaluates existing U.S. assistance programs targeting labor relations and workers’ rights in El Salvador. It then examines the proposed CAFTA workers’ rights provisions, assesses their weaknesses, and suggests stronger alternatives.
In recent years, the United States has provided millions of dollars of development assistance to Central American countries, including El Salvador, a portion of which has gone to local labor ministries. The aid is characterized by some as a panacea for workers’ human rights abuses in the region. But that has not been the case. The U.S.-funded programs, at times, have contributed to improving the technical capacity and infrastructure of the region’s labor ministries; provided employer and worker trainings on collective negotiations and labor dispute management; and published diagnostics and other materials on labor relations in the region.442 None of these initiatives, however, has successfully addressed the fundamental obstacles to workers’ human rights in El Salvador: inadequate labor laws and enforcement agencies that lack the political will to uphold labor rights. To the contrary, as described below, when one U.S.-backed program took a significant step in this direction, it ran into serious labor ministry opposition that negated its efforts. This failure of U.S. development assistance underscores the need for more effective methods for improving respect for workers’ human rights in El Salvador.
CAFTA could be an important part of the answer, but only if its labor rights provisions are significantly expanded and strengthened beyond what the United States and other parties are currently contemplating. Although it will be an uphill battle to see such provisions incorporated, CAFTA provides an unprecedented opportunity for meaningful leverage on worker’s human rights in the region. There is some basis for hope. The United States has recognized that there is an inherent link between labor rights and trade. And the U.S. Bipartisan Trade Promotion Authority of 2002, which establishes objectives for the U.S. government to uphold in trade negotiations, includes labor rights-related provisions as well as an overall objective “to promote respect for worker rights.”443 However, if the largely exhortatory and incomplete labor rights provisions that the United States proposed for CAFTA in May 2003 are adopted, CAFTA will not fulfill its potential as a tool to advance workers’ human rights. Instead, as detailed below, CAFTA should require that, within a reasonable time period, local labor laws meet international norms and should establish a transitional mechanism to ensure that a country’s labor practices meet basic standards before trade benefits are phased in.
The U.S. government has funded a number of programs in El Salvador addressing the labor sector. Those with the most significance for worker rights include the U.S. Agency for International Development (USAID) Program Supporting Central American Participation in the Free Trade Area of the Americas (PROALCA), the ILO’s RELACENTRO technical cooperation project,444 the Inter-American Development Bank’s Regional Program for Modernization of the Labor Market, and the Salvadoran Ministry of Labor’s Unit of Monitoring and Analysis of Labor Relations (Monitoring Unit). The PROALCA, RELACENTRO, and Ministry of Labor’s Monitoring Unit programs are discussed below.
The U.S. Department of Labor has provided just over U.S. $1.5 million for RELACENTRO, an ILO technical cooperation project focusing on “freedom of association, collective bargaining and labor or industrial relations in Central America, Panama, Belize and the Dominican Republic.”445 The project, which commenced in October 2000, was scheduled for twenty-four months but was extended into 2003. In conjunction with national tripartite advisory committees, RELACENTRO has aimed to develop “reliable systems of industrial relations” that “can produce a harmonious working relationship, and help bring about a pluralistic, democratic society, which respects human rights and provides value added to the governance of society.” To these ends, RELACENTRO has prepared publications and promoted a series of activities, trainings, and workshops for employers, trade unions, managers, workers, labor ministry staff, and, in some cases, labor judges and magistrates, “aimed at building local capacity to negotiate collective agreements, and resolve labor disputes expeditiously.”446
Despite RELACENTRO officials’ efforts, however, RELACENTRO has not gone smoothly in El Salvador. The project was almost entirely suspended in the country for roughly five months in 2002, reportedly due to a disagreement between RELACENTRO and the minister of labor regarding the appropriate trade union organizations with which to engage.447 In a letter to El Salvador’s minister of labor in November 2002, RELACENTRO’s director noted, “[T] he tripartite activities of the ILO have been negatively affected, the realization of some of them having been impeded, a situation that we should avoid at all cost in the future.”448
The controversy reportedly arose from a decision by RELACENTRO officials to coordinate with the Inter-Union Commission as well as the High Labor Council (CST). The CST was created by legislative decree on April 21, 1994, as a tripartite “Consultative Organ of the Executive Branch, with the goal of institutionalizing dialogue and promoting economic and social reconciliation among the political authorities and the organizations of employers and workers.”449 The CST “is authorized to formulate recommendations regarding the elaboration . . . and revision of social policy,” including by proposing and commenting on labor law reforms, recommending the ratification of ILO conventions, and evaluating labor law enforcement and recommending improvements.450 Since its founding, however, the CST has been plagued by controversy. Non-participating labor organizations, unhappy with its performance, have formed the Inter-Union Commission, claiming that the council “is a nonfunctional entity [that] serves to support the government . . . [and] really not an organization that serves to defend the interests of the workers.” They also assert that the council’s labor federations “are organizations that praise the polices of the government [and] have never spoken about workers’ rights violations.”451 Labor organizations participating in the council counter that it is a productive entity that has accomplished much on behalf of workers.452
The minister of labor has criticized the ILO for failing to work exclusively with the High Labor Council.453 According to the principal specialist for labor activities for RELACENTRO, the minister of labor wrote to the director general of the ILO accusing RELACENTRO of “interfering in the social peace” of the country.454 The lead labor sector representative on the High Labor Council also sent a letter to the ILO making “serious affirmations against the ‘projects and personnel of the ILO,’” to which, in a letter to the minister of labor, RELACENTRO’s director felt “obligated to react with the greatest firmness, expressing our total rejection of the unfounded accusations.”455
In 1999, the Ministry of Labor established the Unit of Monitoring and Analysis of Labor Relations, funded primarily by USAID, reportedly “to watch over the rights of maquila workers . . . [and] give recommendations to improve the system for application of the law.”457 In July 2000, the Monitoring Unit released a report containing its findings of widespread workers’ human rights abuses and exploitative conditions in the maquila sector, including violation of workplace health and safety laws, mistreatment of workers, forced and unpaid overtime, unrealistic production goals, violation of workers’ right to form and join trade unions, and refusal to grant workers permission for doctors’ visits.458 The report severely criticized the Ministry of Labor, noting that the Labor Inspectorate “has not ably fulfilled its mandate, as its activity is characterized by partiality, arbitrariness, and lack of transparency.”459 It concluded, “The result of the visits and the conclusions that they gave rise to reveal the urgent necessity to improve the quality of the work of the Ministry and of its principal activities.”460
By the afternoon of the day on which the report was released, high-level Ministry of Labor officials had reportedly recalled all copies and “demanded a meeting urgently for that same afternoon” with the Monitoring Unit staff.461 According to a former unit official, “In that first meeting that afternoon, they decommissioned everything—all the reports, . . . our own notes; . . . they erased the computers.”462 The former Monitoring Unit member added that in the many meetings that followed, high level Ministry of Labor officials “told us we were unpatriotic, that we didn’t love our country, that we were the worst of this country’s society, . . . [and that] we were against the government.”463 Those officials reportedly accused the Monitoring Unit staff of having been “infiltrated by the country’s party of the left” and of “taking advantage of being in the unit to block the government with respect to CBI [Caribbean Basin Initiative]” eligibility, being reviewed at the time by the United States.464
The maquila industry reportedly pressured the minister of labor to prepare a document refuting the report’s findings, and, like the Nationalist Republican Alliance (ARENA) party, the political party of the government, its leaders publicly called for the arrest of members of the unit.465 When Human Rights Watch asked the executive director of the National Association for Private Business (ANEP) to comment on the Monitoring Unit’s report, he responded:
Similarly, when Human Rights Watch asked the minister of labor why he had withdrawn the Monitoring Unit’s July 2000 report from circulation, he responded:
Former unit members, however, tell a different story. Countering the assertion that the report was prepared behind the minister’s back, one former unit official explained to Human Rights Watch, “Every time we prepared something, we sent a copy to the minister and the vice-minister, . . . but we never received an answer. . . . We have a copy of the signatures saying that the documents were received by the minister’s secretary.”468 Describing the basis for the report, the former member explained, “We visited the export processing zones. . . . We arrived . . . with questionnaires prepared. . . . We chose the workers. We explained to them why we were there—to learn how they were treated and if their labor rights were respected.”469 The team also reportedly spoke with supervisors and the heads of human resource departments at the visited maquilas.470 Another former Monitoring Unit member added, “We inspected close to one hundred maquilas.”471 A third former unit member described the Monitoring Unit team’s methodology to Human Rights Watch as “almost the same” as that which labor inspectors are required to follow—“only we had a questionnaire.” He added, “The report contains what the people said. We put in everything, . . . nothing more than what the people said.”472
A former labor inspector, speaking on condition of anonymity, commented on the Monitoring Unit’s report to Human Rights Watch, saying, “What the report contains is the reality of the maquilas. Sometimes the government wants to cover up the bad actions of some employers, and other times, it is not that the government wants to cover up for certain companies but that it wants to deny that these situations occur here.” 473
In 1997, USAID launched PROALCA,474 scheduled to run through 2001 but later extended through 2007.475 One of PROALCA’s three primary goals has been “to improve functioning of regional labor markets, while strengthening the protection of core labor standards.”476 PROALCA’s planned budget in 2001 was U.S. $2.9 million, with roughly U.S. $755,000 earmarked for “technical assistance to strengthen CA [Central American] Ministries of Labor and labor market modernization activities.”477 The 2002 budget was planned at roughly U.S. $2.8 million, with approximately U.S. $500,000 to establish alternative labor dispute resolution systems, “enhance the technical and program capacity of CA Labor Ministries, increase the competitiveness of the region’s labor force, and harmonize labor laws and regulations in the region.”478
At the conclusion of the first phase of PROALCA in 2001, USAID “hailed successes in areas such as . . . protection of workers’ rights,” touting them “as evidence of positive achievements of USAID collaboration with Central American governments.”479 Many observers, however, noted serious deficiencies in the program. Based on the findings documented in this report, moreover, it is clear that whatever progress has been made has done little to address violations of core labor standards, particularly freedom of association.
As part of PROALCA, USAID has suggested harmonization of labor laws without urging specific reforms that would bring local legislation into compliance with international norms. The agency has sought to create alternative labor dispute resolutions systems, without also emphasizing and supporting programs to protect and promote the free enjoyment of workers’ right to organize and to form and join trade unions. As one labor lawyer commented to Human Rights Watch:
More generally, while strengthening labor ministries through training and technology transfer is a necessary step towards improved domestic labor law enforcement, such measures fail to address the core problem in El Salvador: lack of political will to reform and effectively enforce labor rights legislation. As one commentator explained to Human Rights Watch, as a result of PROALCA, “the building [the Labor Ministry] has improved. It’s more comfortable, cleaner. The infrastructure has improved, but what hasn’t changed is the way of thinking.”481
The U.S.-Central America Free Trade Agreement
In January 2003, CAFTA negotiations began among the United States, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. The final negotiating round is scheduled for early December 2003. At the fourth round of CAFTA negotiations in May in Guatemala, the United States proposed labor rights protections, virtually identical to those in the U.S.-Chile Free Trade Agreement and similar to those in the U.S.-Singapore Free Trade Agreement.
The only workers’ rights requirement in those agreements is that countries enforce existing labor laws, even if those laws fail to meet international standards. The only labor rights-related provision the violation of which could lead to the invocation of dispute settlement mechanisms is that “[a] Party shall not fail to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties.”482
Beyond the commitment to enforce their labor laws, the parties to the U.S.-Chile and U.S.-Singapore accords pledge to “strive to ensure” that they do not encourage trade or investment by weakening or reducing the protections in domestic labor laws and to “strive to ensure” that domestic labor laws recognize and protect international labor standards.483 None of these provisions is enforceable. The offending party does not face any meaningful consequences for violating these standards, as the accords do not contemplate the possibility of fines or sanctions in these cases.
These provisions are inadequate for the United States, Chile, and Singapore. They would be a disaster for Central America.
As detailed in this report, El Salvador’s labor laws governing the right to freedom of association fall far short of international standards. CAFTA provides an opportunity to pressure El Salvador to fulfill its international law obligations by amending its legislation to meet these standards. This opportunity should not be squandered. Violations of all CAFTA’s labor rights-related provisions, including those pertaining to domestic labor standards, should carry the possibility of fines or sanctions.484 Ensuring that dispute settlement procedures be available to all commercial and labor rights provisions in a trade accord is not new. The U.S.-Jordan Free Trade Agreement that entered into force in December 2001 already adopts this parity principle.485
Human Rights Watch recognizes that legal reforms do not happen overnight. Therefore, we recommend that CAFTA allow for a reasonable time period within which Central American countries must reform their labor laws if they are to continue to receive full benefits under the accord. Failure to meet the deadline should be considered a violation of the accord and lead to the immediate invocation of dispute settlement mechanisms.
A relatively short timeline should be set for amending laws to ensure compliance with rights enumerated in the ILO Declaration on Fundamental Principles and Rights at Work, including freedom of association. For example, a country could be given one year or eighteen months to implement such legal reforms. Under the ILO Declaration, all of the potential CAFTA countries have “to respect, to promote and to realize, in good faith” these principles because they are ILO members. Compliance with the ILO Declaration includes adopting domestic labor legislation that fully protects these core standards.486 Therefore, CAFTA would impose no new obligation by compelling them to do so.
A longer timeline could be set for Central American countries to amend their laws to protect fully the non-core economic and social labor rights, defined in the U.S.-Chile and U.S.-Singapore accords as “acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.”487 For example, a two- or three-year period could be specified for these reforms. The longer time period would accommodate differences among countries in levels of socio-economic development and available resources and would be consistent with the relevant U.N. and OAS instruments governing these rights. To facilitate such reforms, the United States should provide development assistance targeting the amendment and subsequent enforcement of the relevant labor laws in the affected countries.
Although some might see the recommended CAFTA provisions as an infringement of national sovereignty or as an unfair imposition of rich country standards on developing countries, neither is the case. All five Central American countries have already ratified international instruments that obligate them to protect both civil and political, as well as economic and social, labor rights. A CAFTA provision mandating that they do so would only reinforce this prior commitment. Requiring trading partners to amend legislation, often over time, as a condition for entering into free trade agreements, moreover, is not new for the United States in the commercial area. For example, according to the Office of the U.S. Trade Representative (USTR), the U.S.-Chile and/or U.S.-Singapore accords require the gradual elimination of a luxury tax on automobiles over four years; modification of legislation to open cross-border supply of key insurance sectors; lifting of a ban on new licenses for full-service banks within eighteen months; liberalization of registration and certification requirements of patent agents; elimination of capital ownership requirements for land surveying services; prohibition of the production of optical discs, such as CDs, DVDs, or software, without source identification codes, unless authorized by the copyright holder in writing; and enactment of a law regulating anti-competitive business conduct by January 2005.488 Human Rights Watch believes that laws governing workers’ human rights are as fundamental to free and fair trade as those governing businesses’ and investors’ rights. The United States has demanded that countries amend commercial legislation as a condition of free trade; it should do the same for labor laws.
Bringing domestic labor legislation into compliance with international standards alone, of course, will not ensure that Salvadoran and other Central American workers can freely exercise their human rights. Enforcement of the law is also critical. Although, as noted above, the United States has proposed including in CAFTA, as in the U.S.-Chile and U.S.-Singapore accords, a provision requiring enforcement of domestic law, more is needed. Even if the requirement were sufficient to address ineffective enforcement in the United States, Chile, and Singapore, a question we do not address here, it is clearly inadequate for El Salvador, where the failure to enforce existing labor laws is egregious, systemic, and largely attributable to a lack of political will. As history has shown, tariff benefits, once granted, are difficult to withdraw.489 Therefore, a transitional mechanism that makes the phase in of tariff benefits conditional upon adequate labor law enforcement is essential to ensure that El Salvador and other CAFTA countries do not enjoy full CAFTA benefits while honoring in the breach the requirement that parties effectively enforce their labor laws.
To these ends, Human Rights Watch proposes a transitional mechanism for CAFTA modeled after the U.S.-Cambodia textile agreement, touted by U.S. Trade Representative Robert Zoellick as “an excellent example of the way trade agreements lead to economic growth and promote a great respect for workers’ rights.”490 The U.S.-Cambodia textile agreement allows the United States to raise limits on its Cambodia textile imports if working conditions in that sector “substantially comply” with local labor laws and international standards.491 A similar approach to U.S. market access under CAFTA should be adopted.492
It is likely that goods traded under CAFTA will fall into various tariff phase-out baskets, ranging from immediate tariff elimination for goods in the first basket to fifteen-year or indefinite phase out for those in the last. These scheduled reductions should not be automatic. Instead, the United States should grant the tariff reductions only if it determines, in annual reviews, that Central American countries have met established benchmarks for effectively enforcing labor laws in the traded sectors. The reviews should be conducted and the reductions granted, country by country and sector by sector.493 For example, if Central American textiles were scheduled to enter the United States duty free after five years—phasing in the benefit by granting a 20 percent annual reduction—and an annual labor law enforcement review revealed a failure to enforce effectively labor legislation in that sector, the tariff reduction for that year would be totally or partially denied. The degree to which the reduction would be denied could depend on the pervasiveness and duration of and reasons for the failure to enforce the law, as well as the enforcement level that could reasonably be expected given a party’s resource limitations.494
This approach to labor law enforcement creates a positive incentive to encourage respect for workers’ human rights. It grants tariff reductions commensurate to the speed with which countries improve labor conditions. It likely would turn the “race to the bottom” on its head as Central American countries strove for improved labor practices in exchange for faster and greater access to U.S. markets. And it would avoid the oft-criticized broad-brush approach of sanctioning a country for the ills of one sector, since problem sectors would be denied tariff reductions, while better-performing sectors would enjoy them.
Absent reforms along the lines recommended above, El Salvador and other Central American countries will have no incentive under CAFTA to strengthen their deficient labor laws and little incentive to improve practices. They could end up enjoying ever-greater tariff benefits, while the abuse of Central American workers’ human rights persists. Instead, CAFTA should include strong, enforceable labor rights protections to create a free trade area in which the rights of workers producing goods for export are upheld.
435 See, e.g., WTO, Trade Policy Review El Salvador, p. 4.
436 El Salvador Central Reserve Bank, Exportaciones e importaciones anuales, por producto, origen y destino [Annual exports and imports, by product, origin, and destination], n.d., http://www.bcr.gob.sv/estadisticas/se_balanzacom.html (retrieved August 7, 2003); MSI Legal and Accounting Network, Doing Business In . . . El Salvador, August 6, 2003, http://www.msi-network.com/content/doing_business_in_elsalvador_page1a.asp (retrieved August 6, 2003).
437 WTO, Trade Policy Review El Salvador, p. 8.
438 American Park Free Trade Zone, Free Zones in El Salvador, n.d., http://www.americanpark.com.sv/Presentacion/development1.htm (retrieved August 6, 2003); PROESA, Investment Climate: Investment Opportunities: Free Zones, n.d., http://www.proesa.com.sv/freezones_inv.asp (retrieved August 5, 2003). There are allegedly sixteen large free trade zones in El Salvador and over two hundred individual factories with free zone status. Latin America Media Management, L.L.C., LatinTrade.com, 2002, http://www.latintrade.com/newsite/content/cprofiles/data-ext.cfm?d=2404&c=12 (retrieved August 5, 2003); Tamara Underwood, “Ask the TIC [Trade Information Center]: Basic Exporting to Central America,” Export America, October 2001, pp. 14-15.
439 El Salvador Central Reserve Bank, Exportaciones e importaciones anuales, por producto, origen y destino; MSI Legal and Accounting Network, Doing Business In . . . El Salvador; Latin America Media Management, L.L.C., LatinTrade.com; American Park Free Trade Zone, Free Zones in El Salvador, n.d., http://www.americanpark.com.sv/Presentacion/actual2.htm (retrieved August 6, 2003).
440 MSI Legal and Accounting Network, Doing Business In . . . El Salvador; U.S. Chamber of Commerce, U.S.-Central America Free Trade Agreement, Fact Sheet No.1 : CAFTA Will Capitalize on an Already Booming Trade Relationship, 2003, http://www.uschamber.com/government/issues/international/cafta1.htm (retrieved June 6, 2003); U.S. Central Intelligence Agency, The World Factbook 2002, n.d., http://www.cia.gov/cia/publications/factbook/geos/es.html (retrieved June 24, 2003).
441 American Park Free Trade Zone, Free Zones in El Salvador, n.d., http://www.americanpark.com.sv/Presentacion/actual1.htm (retrieved August 6, 2003).
442 ILO, Project Document: RELACENTRO, n.d., http://www.oit.or.cr/relacentro/proeycto2.html (retrieved January 5, 2003). For example, funds from the Program Supporting Central American Participation in the Free Trade Area of the Americas (PROALCA), discussed below, have reportedly paid to install computer information systems in Central American labor ministries and train over 2,000 labor ministry officials in “labor inspections, the labor market, workers’ rights, occupational safety and health matters, alternative dispute resolution, and the labor standards requirements of free trade agreements.” They have also led to the development of an occupational health and safety center in El Salvador. U.S. Agency for International Development (USAID), Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-001.htm (retrieved January 6, 2003).
443 Bipartisan Trade Promotion Authority Act of 2002, sec. 2102(a)(6).
444 RELACENTRO stands for Libertad Sindical, Negociación Colectiva y Relaciones de Trabajo en Centroamerica, Panama, Belice y República Dominicana [Freedom of Association, Collective Bargaining, and Labor Relations in Central America, Panama, Belize and the Dominican Republic].
445 ILO, Project Document: RELACENTRO.
447 Human Rights Watch interview, Jorge Isidoro Nieto Menéndez, minister of labor, San Salvador, February 13, 2003; Human Rights Watch interview, Victor Aguilar, director, CSTS, San Salvador, February 5, 2003.
448 Letter from Enrique Brú, director, RELACENTRO, to Jorge Isidoro Nieto Menéndez, minister of labor, November 13, 2002.
449 Creation of the High Labor Council, Decree No. 859, April 21, 1994, reprinted in Diario Oficial, no. 87-bis, vol. 323, May 12, 1994.
450 Regulation of the High Labor Council, Decree No. 69, December 21, 1994, reprinted in Diario Oficial, no. 239, vol. 325,December 23, 1994, arts. 1, 7.
451 Human Rights Watch interview, Victor Aguilar, director, CSTS, San Salvador, February 5, 2003.
452 Human Rights Watch interview, Sarahí Molina, labor sector representative, High Labor Council, San Salvador, February 18, 2003; Human Rights Watch interview, Juan José Huezo, general secretary, National Union Federation of Salvadoran Workers (FENASTRAS), San Salvador, February 18, 2002.
453 Human Rights Watch interview, Jorge Isidoro Nieto Menéndez, minister of labor, San Salvador, February 13, 2003.
454 E-mail message from Juan Manuel Sepúlveda Malbrán, principal specialist for labor activities, RELACENTRO, to Víctor Aguilar, director, CSTS, March 3, 2003.
455 Letter from Enrique Brú, director, RELACENTRO, to Jorge Isidoro Nieto Menéndez, minister of labor, November 13, 2002.
456 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003. Human Rights Watch interviewed three former Monitoring Unit officials, who, speaking on condition of anonymity, recounted their similar experiences during report preparation and in the aftermath of its release. The three officials are identified here by the letters A, B, and C.
457 Ibid.; Ministry of Labor, Monitoring Unit, Informe del monitoreo de las maquilas y recintos fiscales [Report of maquila and fiscal institution monitoring], July 2000, p. i. Similarly, the July 2000 report explained that the Monitoring Unit’s purpose was to “learn, in the workplaces, the different conditions in which labor relations unfold and use this information . . . in the design of labor policies [and] proposals for the reformulation and functioning of the different branches of the Ministry.” Ministry of Labor, Monitoring Unit, Informe del monitoreo de las maquilas y recintos fiscales, p. i.
458 Ministry of Labor, Monitoring Unit, Informe del monitoreo de las maquilas y recintos fiscales, pp. 7-19.
459 Ibid., p. 21.
460 Ibid., pp. i-ii.
461 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003. The U.S.-based National Labor Committee obtained a copy of the report, however, shared it with the New York Times in early 2001, and posted it on the organization’s web page, where it remains and from which Human Rights Watch obtained a copy. See Steven Greenhouse, “Labor Abuses in El Salvador are Detailed in Document,” New York Times, May 10, 2001.
462 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003; see also Human Rights Watch interview, Former Monitoring Unit Official B, San Salvador, February 11, 2003; Human Rights Watch interview, Former Monitoring Unit Official C, San Salvador, February 4, 2003.
463 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003.
464 Ibid.; see also Human Rights Watch interview, Former Monitoring Unit Official C, San Salvador, February 4, 2003. The Caribbean Basin Initiative (CBI) refers to the Caribbean Basin Economic Recovery Act of 1983 (CBERA), the Caribbean Basin Economic Recovery Expansion Act of 1990 (CBERA Expansion Act), and the U.S.-Caribbean Basin Trade Partnership Act of 2000 (CBTPA), collectively. The CBERA Expansion Act, in force during the period that the Monitoring Unit was realizing its activities, was a unilateral U.S. trade preference program that granted Central American and Caribbean countries tariff-free access to U.S. markets if they met certain criteria, including “taking steps to afford internationally recognized worker rights . . . to workers in the country.” CBERA Expansion Act, sec. 213(3).
465 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003; see also Human Rights Watch interview, Former Monitoring Unit Official C, San Salvador, February 4, 2003.
466 Human Rights Watch interview, Luis Mario Rodríguez, executive director, National Association for Private Business, San Salvador, February 17, 2003.
467 Human Rights Watch interview, Jorge Isidoro Nieto Menéndez, minister of labor, San Salvador, February 13, 2003.
468 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003.
469 Ibid.; see also Human Rights Watch interview, Former Monitoring Unit Official B, San Salvador, February 11, 2003.
470 Human Rights Watch interview, Former Monitoring Unit Official A, San Salvador, February 9, 2003.
471 Human Rights Watch interview, Former Monitoring Unit Official C, San Salvador, February 4, 2003.
472 Human Rights Watch interview, Former Monitoring Unit Official B, San Salvador, February 11, 2003.
473 Human Rights Watch interview, former labor inspector, Santa Ana, February 17, 2003.
474 PROALCA is short for Pro-Area de Libre Comercio de las Américas[Pro-Free Trade Area of the Americas].
475 USAID, Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-005.htm (retrieved January 6, 2003); USAID, Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-001.htm (retrieved January 6, 2003).
476 USAID, Central American Regional Program: Program Data Sheet 596-005, n.d., http://www.usaid.gov/country/lac/cap/596-005.htm (retrieved January 6, 2003); see also USAID, Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-001.htm.
477 USAID, Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-001.htm.
478 USAID, Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-005.htm; USAID, Central American Regional Program: Program Data Sheet 596-005. The estimated U.S. $500,000, however, was based on a proposed budget of U.S. $2.6 million, rather than U.S. $2.8 million. Ibid.
479 USAID, Central American Regional: Activity Data Sheet, n.d., http://www.usaid.gov/pubs/cbj2002/lac/cap/596-005.htm.
480 Human Rights Watch interview, Ernesto Gómez, labor lawyer, San Salvador, February 3, 2003.
481 Human Rights Watch interview, José Antonio Candray, director, CENTRA, San Salvador, February 4, 2003.
482 U.S.-Chile Free Trade Agreement, art. 18:2(1)(a); U.S.-Singapore Free Trade Agreement, art. 17:2(1)(a).
483 U.S.-Chile Free Trade Agreement, arts. 18:1, 18:2(2); U.S.-Singapore Free Trade Agreement, arts. 17:1, 17:2(2).
484 As a CAFTA requirement, such a provision would also be binding on the United States and would, therefore, also obligate the United States to remedy the well-documented deficiencies in its labor laws. See, e.g., Human Rights Watch, Fingers to the Bone: United States Failure to Protect Child Farmworkers (New York, NY: Human Rights Watch, June 2000);Human Rights Watch, Unfair Advantage.
485 In contrast to the U.S.-Jordan Free Trade Agreement, however, under the U.S.-Chile and U.S.-Singapore accords and the proposed CAFTA provisions, the dispute settlement mechanism that can be invoked against a party for failing to uphold labor laws is different, in several key aspects, from that available to enforce commercial obligations. Most importantly, if a trading partner is fined for ineffectively enforcing its labor laws, the fine is redirected back to the violating party for “appropriate labor . . . initiatives.” Yet no mechanism exists to prevent the offending party from shifting the national budget to account for the assessment, paying the fine year after year, and indefinitely failing to remedy the violation. This loophole does not exist in the dispute settlement mechanism available for commercial provisions. Though not addressed in this report, this serious shortcoming should also not be replicated in CAFTA. See U.S.-Chile Free Trade Agreement, art. 22:16; U.S.-Singapore Free Trade Agreement, art. 20:7.
486 International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work.
487 U.S.-Chile Free Trade Agreement, art. 18:8(e); U.S.-Singapore Free Trade Agreement, art. 17:7(1)(e).
488 USTR, Trade Facts: Free Trade with Singapore: America’s First Free Trade Agreement in Asia, n.d., http://www.ustr.gov (retrieved July 13, 2003); USTR, Trade Facts: Free Trade with Chile: Summary of the U.S.-Chile Free Trade Agreement, n.d., http://www.ustr.gov (retrieved July 13, 2003).
489 For example, the North American Free Trade Agreement’s (NAFTA) labor side accord—the North American Agreement on Labor Cooperation (NAALC)—provides for the possibility of fines or sanctions against a party that fails to “promote compliance with and effectively enforce” laws governing occupational safety and health, child labor, or minimum employment standards. Complaints have been submitted under the accord alleging failure to uphold labor laws in these areas. Yet none has proceeded past even the first tier of the NAALC’s three-tiered enforcement mechanism, which must be exhausted prior to the imposition of fines or sanctions.
491 Agreement Relating to Trade in Cotton, Wool, Man-Made Fiber, Non-Cotton Vegetable Fiber and Silk Blend Textiles and Textile Products Between the Government of the United States of America and the Royal Government of Cambodia, art. 10(d).
492 The goal of the proposed transitional mechanism is to address ineffective labor law enforcement in El Salvador, specifically, and throughout Central America, generally. Other mechanisms could be proposed to address the well-documented inadequate labor law enforcement in the United States. See, e.g., Human Rights Watch, Fingers to the Bone;Human Rights Watch, Unfair Advantage.
493 Alternative transitional mechanisms, modeled more loosely after the U.S.-Cambodia textile agreement, could also be considered. For example, an independent panel could be established to conduct the above-described annual reviews, comprised of individuals with experience in workers’ human rights and not affiliated with any CAFTA party.
494 These factors are also enumerated for consideration when calculating an appropriate fine for ineffective labor law enforcement under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. U.S-Chile Free Trade Agreement, art. 22:16; U.S.-Singapore Free Trade Agreement, art. 20:7.