SummaryThe new US administration that comes into office in January 2009 will be responsible for implementing labor provisions in existing US free trade agreements and face the challenge of restructuring the accords and the larger US trade agenda to better protect workers’ rights. This report examines the current US approach to workers’ rights in trade agreements, identifying serious deficiencies, and proposes specific steps the new administration should take to address the shortcomings. This report’s analysis and recommendations focus primarily on how the United States can better ensure that its free trade accords guarantee respect for workers’ rights in the territory of its trading partners. We recognize, however, that to create a US free trade regime rooted in respect for workers’ rights, all parties to US bilateral and regional accords must press their trading partners to uphold such rights. Only then will the goal of greater labor rights protection in all trading partners, including in the United States, be achieved. Human Rights Watch takes no position on free trade per seor the recent proliferation of US bilateral accords, but we believe that trade agreements provide important leverage and opportunities to promote workers’ rights. While there has been some recent progress in US policy, including improvements based on the May 2007 trade policy template, the United States still fails to effectively utilize the powerful tool of trade accords. Human Rights Watch believes that significant, bold changes are needed that not only strengthen substantive labor provisions but improve state compliance and facilitate enforcement. US free trade accords should clearly and unambiguously require parties to uphold core workers’ rights in their domestic laws. These are universally recognized rights identified in the International Labor Organization (ILO) Declaration on Fundamental Principles and Rights at Work and defined in the relevant ILO conventions. Parties to trade agreements should be required to effectively enforce such laws as well as laws governing acceptable conditions of work in all sectors involving trade and investment between the parties. Trade accords should also include provisions imposing penalties on companies and employers implicated in labor abuses. Compliance with US trade agreements’ labor requirements should be a priority from the beginning of trade negotiations, rather than, as is too often the case at present, near the end of negotiations or after they have concluded. At the first round of talks, the United States should clearly outline for each potential trading partner the areas in which its domestic labor regime falls short of trade accords’ workers’ rights provisions and offer necessary assistance to remedy the deficiencies. The negotiations should not conclude until compliance is achieved. Of course, robust workers’ rights provisions and early intervention to facilitate compliance are unlikely to lead to long-term improvements if the provisions are not implemented effectively. And historically, the enforcement of US free trade agreements’ labor rights requirements has been terrible. In the 14 years since the first trade agreement with such provisions went into effect, not one labor-rights-related complaint under any agreement—eight are currently in force—has advanced beyond ministerial-level consultations between the parties. To ensure more effective enforcement, complaint and dispute settlement processes must be greatly depoliticized and the broad enforcement discretion enjoyed by states significantly reduced. To these ends, clear requirements should be imposed for the initial review and investigation of each complaint alleging violation of an agreement’s workers’ rights provisions. State-to-state consultations should automatically follow if the initial review identifies workers’ rights deficiencies; such consultations should be geared toward reaching an effective plan to remedy the failings. And until an action plan to address these labor shortcomings is established and fully implemented, the labor complaint should automatically proceed through the complaint process to initiation of formal dispute settlement procedures, the convening of an arbitral panel, and, ultimately, determination of whether an accord violation has occurred and imposition of appropriate fines or sanctions. Trade agreement complaint and dispute settlement processes should be further improved to ensure more systematic, credible, and objective enforcement of workers’ rights guaranteed by the accords. Such processes are complex, with often rigorous complaint submission criteria, and they must be more widely accessible to groups with first-hand knowledge of abuses. These processes historically have been underutilized, and mechanisms should be established to assist potential complainants, including an entity modeled on the US Department of Commerce’s Trade Compliance Center (TCC), whose assistance in commerce-related cases can be accessed with a simple email, fax, or phone call. Programs should also be developed to boost awareness in the United States and abroad of trade accords’ labor rights provisions and enforcement processes. In addition, the processes should be more transparent and allow for more regular public participation; organizations making allegations of labor abuse and the private employers and companies implicated should enjoy an opportunity to be heard. Even the most accessible and transparent complaint and dispute settlement processes, however, are likely to address only a fraction of the violations, given the limited number of organizations tracking such issues. To prevent this outcome, the United States should engage in proactive monitoring, including by conducting inspections in its trading partners and initiating complaint and enforcement processes if problems are identified. Human Rights Watch believes that implementation of these recommendations, elaborated in greater detail below, would represent an important step toward ensuring respect for the rights of workers producing goods and rendering services under US free trade accords. Without such changes, we fear that the United States will continue a strategy that purports to protect such workers’ rights but fails to do so in practice. |