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NAFTA falling short on worker rights

by Jim Lobe

Washington, 16 Apr 2001 (IPS) - - Mechanisms for protecting labour rights under the North American Free Trade Agreement (NAFTA) have fallen far short of their promise, largely because of timidity on the part of its three member governments, Canada, the United States and Mexico, according to a new report released here Monday by Human Rights Watch (HRW).

The 64-page report, “Trading Away Rights”, calls for the NAFTA partners to create an independent oversight agency to pursue claims of labour-rights violations. It also urges that the proposed Free Trade Area of the Americas (FTAA), the top agenda item at this week’s Summit of the Americas in Quebec City, include provisions which will better protect worker rights.

“The NAFTA labour accords suffer from both structural defects and a lack of political will,” said Jose Miguel Vivanco, director of HRW’s Americas division.  “They are an important lesson for any future trade agreements."

“Our research shows that agreements on labour will never work without the active support of the countries involved. In the case of NAFTA, these three countries have actually worked to minimise the impact of the labour provisions,” he charged.

The report, whose release was clearly timed for maximum impact on discussions on the FTAA in Quebec City, may also affect the domestic debate here, as President George W. Bush’s Trade Representative (TR), Robert Zoellick, struggles to put together a trade policy that will be backed by a solid majority in Congress.

Zoellick has been trying for weeks to fashion a trade bill that would grant the administration new “fast-track” authority to negotiate the FTAA and other market-opening accords. Without fast-track authority, trade agreements negotiated by the executive branch can be amended on the floor of Congress, which would then require reopening negotiations. Fast-track authority requires Congress to vote up or down on the trade package without it being subject to amendment or normal procedural delays.

But Congressional Democrats have insisted, as the price of their support for fast-track authority, that all new trade agreements, including the FTAA, include strong and enforceable labour rights and environmental protections, stronger even than those included in NAFTA.

They want all future agreements to be modelled on a US-Jordanian free-trade accord negotiated last year by the Bill Clinton administration and currently pending before Congress. Under it, trade sanctions may be imposed against either country if it weakens or fails to enforce domestic labour laws or core labour standards as defined by the International Labour Organisation (ILO).

The Republican leadership in Congress is strongly opposed to the accord, which it sees as a dangerous precedent that threatens US leadership in promoting free trade, especially in the emerging markets of Asia and Latin America.

As originally conceived and negotiated by Bush’s father, NAFTA included no provisions to protect labour rights, an omission much criticised by Clinton during his successful 1992 campaign to unseat the elder Bush. Once elected, he negotiated a side agreement, the North American Agreement on Labour Co-operation (NAALC), which was approved by Congress along with NAFTA in late 1993.

NAALC, however, was not intended to harmonise labour standards in the three countries, and it ruled out the creation of tribunals or other appeals procedures by which individuals who claimed their labour rights were violated could seek redress.

Instead, it required NAFTA signatories to recognise a broad range of labour rights as defined by the ILO and to effectively enforce their own labour laws.  It also established a government-appointed National Administrative Office (NAO) in each country to investigate complaints of non-compliance with NAALC’s requirements.

In dealing with complaints, an NAO can set up consultations with its counterpart to obtain information about specific cases and make initial findings. If that proves inadequate, the NAO can ask that a meeting of labour ministers be convened to take up the problem.

If that is not successful, a state may request that a special experts committee be formed to analyse whether there is a pattern of violations which requires greater attention. For issues which remain unresolved, the labour ministers of all three states can convene an arbitration panel that may also make recommendations to redress the problem.

The most important structural weakness of this scheme, according to the HRW report, is the lack of an independent oversight body focussed solely on protecting and advancing labour rights. The fact that the three governments control the process means that decisions reached under NAALC are always taken with respect to general bilateral relations.

Despite that basic structural flaw, however, HRW still sees NAALC as “the most ambitious link between trade and labour rights ever implemented.” Even with these limitations, the NAALC has the potential to be a much more effective mechanism for promoting labour rights than it has been in practice to date, the report says.

The principal reason it has failed to be more effective is its “timid use” by the governments, according to the report, which accuses them of failing to speak out forcefully against apparent violations, press their counterparts to redress problems, or take cases to higher levels in the appeals process.

Twenty-three complaints of systematic violations of workers’ rights have so far been filed with NAOs under NAALC since it came into force in 1994 - 14 in Mexico, seven in the United States and two in Canada. Companies named as violators include General Electric, Honeywell, Sony, Spring and General Motors, all of which have assembly plants in Mexico, and the Washington State apple industry, which has been accused of mistreating Mexican migrant workers.

Violations alleged by these complaints have included favouritism toward employer-controlled unions; retaliation against workers for organising; denial of collective bargaining rights; forced pregnancy testing; and life-threatening health and safety conditions.

Despite the strength of the evidence in cases of violations and the seriousness of the violations themselves, there has been not a single case in which sanctions have been imposed against an alleged labour-rights violator. Indeed, no experts committee - the third step in the appeals process - has ever even been convened, according to the report.

Although the publicity created around some of the cases has highlighted problems, especially in Mexico, the structural problems and lack of political will shown by the governments “represent a very serious blow to labour rights in the region,” said Vivanco.

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