Improving Workers’ Rights ProtectionsProtecting Core Workers’ Rights in Domestic LawsHuman Rights Watch believes that all parties to US trade accords should at least be required to effectively protect the four core workers’ rights identified in the ILO Declaration on Fundamental Principles and Rights at Work in their domestic laws. If those laws fall short of international standards, even their diligent application will not ensure that workers can fully and freely exercise their basic rights. At first glance, the four template-based free trade agreements include just such a requirement. However, a footnote muddies this seemingly straightforward provision, stating that the requirement that each party “adopt and maintain in its statues and regulations, and practices thereunder, the ... rights, as stated in the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up” refers “only to the ILO Declaration.”14 The ILO Declaration obliges all ILO members “to respect, to promote and to realize, in good faith” the ambiguous and much debated “principles concerning the fundamental rights,” as opposed to the more clearly articulated “fundamental rights” specifically defined in the relevant ILO core conventions and their interpretative jurisprudence.15 While protecting “rights” entails abiding by ILO conventions, and the main text of the template-based agreements clearly requires just such compliance from all parties, the meaning of respecting the “principles” derived from the conventions is much less clear.16 Although a relationship exists between the nebulous “principles” and the more well-defined “rights,” the relationship is unresolved and it is not clear the extent to which respecting the “principles” means adhering to ILO conventions. Instead, it is a question that will have to be answered when an arbitral panel, facing a complaint alleging failure to “adopt and maintain” core workers’ rights in domestic laws, first is called on to interpret this new template-based provision.17 Until then, the precise scope of the obligation to incorporate core workers’ rights into domestic labor laws will remain unclear. Require Laws that Protect Core Workers’ Rights The confusion from the above-described footnote should be eliminated. Instead, the clear language of the main text of the four template-based free trade accords should be included in all US trade agreements, without any qualification. Each US trade accord party should categorically be required to “adopt and maintain in its statues and regulations, and practices thereunder, the ... rights as stated in the ILO Declaration”—not the “principles concerning the fundamental rights,” but the rights themselves as listed in the Declaration and defined in the ILO core conventions. Protecting Workers in All Trade- and Investment-Related SectorsHuman Rights Watch believes that the workers’ rights protections in US free trade agreements should, at a minimum, extend to all workers in sectors related to trade and investment between the parties, since those are the workers most directly affected by the accords.18 On their face, the four template-based agreements seem to suggest such coverage, expanding on language in most prior accords that included only trade-related sectors. These four agreements establish that parties violate the accords when, “in a manner affecting trade or investment between the Parties,” they fail to adopt and maintain core workers’ rights in their domestic labor laws, waive or derogate from those laws or offer to do so, or fail to effectively enforce them.19 The concept of “affecting trade or investment between the Parties” is unclear, however, and it is important that a new administration ensure that interpretation of the provision does not unduly limit the scope of the accords’ workers’ rights protections. The phrase, for example, could be narrowly construed to require a showing that a country’s breach of an agreement’s labor provisions led directly to lower labor costs, causing: 1) correspondingly cheaper goods, making it more difficult for producers in other trading partners to compete; or 2) increased foreign direct investment. Such a showing, of course, would be difficult and often impossible to make. For example, it might require empirical evidence that sexual harassment of young female factory workers, facilitated by lax enforcement of anti-discrimination laws, led to more cheaply produced goods. Or it might require proof that retaliatory dismissals of union leaders and thwarted organizing drives, perpetuated by inadequate protection of the right to freedom of association, resulted in increased foreign direct investment by investors seeking a union-free environment.20 Requiring such showings would minimize rights violations by shifting the focus to technical, often unanswerable questions of causality. In such cases, the scope of the accords’ labor rights provisions would be significantly reduced and their impact greatly undermined. Recommendation Ensure that Labor Rights Provisions Apply to All Trade- or Investment-Related Sectors Following the example of NAFTA, which allows for an arbitral panel to be convened to address any “trade-related” failure to enforce certain labor standards,21 all US free trade accords should clarify that an agreement violation occurs, at a minimum, whenever workers’ rights provisions are breached in “sectors related to trade or investment between the Parties.” Accounting for Corporate ResponsibilityHuman Rights Watch believes that all US free trade accords should recognize that private actors such as corporations can be and often are complicit in labor abuses and ensure that such actors are held accountable for workers’ rights violations. Presently, US trade accords provide solely for penalties against states. US free trade agreements, with the exception of the US-Jordan accord, currently give at least a nod to corporate complicity in labor rights violations, but they fail to address the culpability of corporations and employers with any degree of specificity. With the exception of NAFTA, existing accords suggest but do not require that states “first seek to” suspend trade benefits in the same sector or sectors at issue in the labor complaint in question, thereby penalizing the industry most responsible for the violations.22 NAFTA demands that “a complaining Party shall first seek to suspend benefits in the same sector or sectors” at issue.23 These agreements, however, including NAFTA, allow states to sidestep these provisions, stating that if a complaining state finds such same-sector suspension not “practicable” or “effective,” it may choose to suspend benefits in other sectors. In such cases, the punitive and deterrent effects on the employers and corporations that actually violated workers’ rights would be negated.24 Furthermore, US trade accords provide a violating state with the option of paying an annual fine instead of suspending trade benefits. But the agreements do not suggest, much less provide a mechanism for, recouping some or all of that fine from the sector or sectors where the labor rights violations at issue occurred. Thus, if a state opts to pay a fine, employers and corporations enjoy impunity under the accords for their complicity in workers’ rights violations. Recommendations Require Arbitral Panel Reports and Action Plans to Address Private-Public Complicity US free trade agreements should require that an arbitral panel’s report propose both concrete recommendations to a violating government and to each private employer and corporation directly or indirectly implicated in any rights abuses identified. Recommendations to employers and corporations should include specific provisions for compensation to the workers whose rights have been violated. Similarly, any resolution reached by the parties to address the rights violations confirmed in the arbitral panel’s report should include remedial measures to be taken by the implicated employers and corporations, including direct payments, other appropriate redress for the affected workers, and measures to prevent future violations. Suspend Benefits for Corporate Violators of Workers’ Rights US free trade accords should provide that if a penalty—whether fine or sanction—is imposed on a violating state, the private exporters implicated in the violation lose trade agreement benefits unless they adopt and implement all relevant arbitral panel recommendations. Such exporters should be deprived of trade agreement benefits:
14 See, e.g., US-Peru TPA, art. 17.2. 15 International Labor Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 18, 1998 (emphasis added). 16 For further discussion, see Human Rights Watch, The 2007 US Trade Policy Template: Opportunities and Risks for Workers’ Rights, no. 2, June 2007, http://hrw.org/backgrounder/usa/trade0607/. 17 An arbitral panel of independent experts may be convened under a US free trade accord in the event that all attempts to resolve disputes through amicable means, including consultations, fail. After conducting an investigation following procedures outlined in the accord, the panel shall issue a report with findings of fact and a determination regarding whether a party has violated a trade agreement. See, e.g., NAALC, arts. 29-36; DR-CAFTA, arts. 20.6-20.13; US-Peru TPA, arts. 21.6-21.13. 18 Such workers would clearly include farm workers harvesting corn for export to the United States, for example, but would not include live-in domestic workers who do not produce export goods or engage in trade-related services. 19 See, e.g., US-Peru TPA, arts. 17.2(2), 17.3(1)(a). 20 Making such an argument could also be philosophically contradictory to the best interests of the workers’ organizations that have filed the vast majority of complaints, as they would have to argue that if they were allowed to organize freely, production costs would increase. 21 NAALC, art. 29(a). 22 See, e.g., DR-CAFTA, art. 20.16(5); US-Peru TPA, art. 21.16(5) (emphasis added). 23 NAALC, annex 41-B(2) (emphasis added). 24 See, e.g., US-Peru TPA, art. 21.16(5); DR-CAFTA, art. 20.16(5). |