Both Clinton and Obama want to see the labor provisions of US FTAs toughened. Mary Jane Bolle of the Congressional Research Service (CRS) gives an idea of what they have in mind in this short, new paper: Overview of Labor Enforcement Issues in Free Trade Agreements (February 29, 2007).
Bolle identifies four patterns or models for labor provisions in past U.S. FTAs. Then she looks at the issues they raise with respect to enforcement of the labor provisions:
...policy issues can be divided into two categories: enforceability issues relating to the FTA provisions (addressed in issues 1-3 below), and issues relating to the agencies charged with enforcement (addressed in issues 4 and 5 below).
1. Only Some Provisions Are Enforceable. One issue relating to the enforcement of labor provisions in trade agreements is that only certain labor provisions in some trade agreements are enforceable, whereas all commercial provisions in trade agreements are fully enforceable. More specifically, under Model 1 [this is the end of the paper, earlier Bolle laid out several models for labor measures in U.S. FTAs - Ben], the model for the NAFTA, the labor side agreement, NAALC, as mentioned, includes only certain enforceable provisions — that a country must enforce its labor standards relating to child labor, minimum wages, and occupational safety and health. Not enforceable is the requirement that a country enforce its laws relating to the most basic core labor rights: to organize and bargain collectively.....
2. Different Enforcement Procedures for and Caps on Penalties for Labor Provisions. For labor and commercial disputes, Model 1 has separate and dissimilar enforcement provision procedures from Model 3. However, both place caps on potential maximum monetary penalties for labor disputes, but place no caps on penalties for commercial disputes.
3. Limits Placed on Scope of Definition of a Term in Labor Provisions. Labor provisions in Model 4 agreements are “fully enforceable” through the same dispute resolution procedures as are available for commercial disputes. As mentioned under the description for Model 4, the template language in the trade agreements includes a footnote saying, “The obligations set out in Article 17.2, as they relate to the ILO, refer only to the ILO Declaration.,” This would suggest that trading Partners could be held to the principles of the Declaration, but not the details of the Conventions....
4. Differentials in Federal Resources Available for Labor as Compared with Commercial Disputes. In the U.S. government, there is a large differential between support available to enforce labor provisions and support available to enforce commercial provisions in preparing any petition for enforcement to be submitted to the USTR. The U.S. government’s monitoring and enforcement activities for nonagricultural commercial issues are primarily centered in the Office of the USTR and U.S. Department of Commerce (DOC). The DOC Trade Compliance Center (TCC) Web page describes the TCC as being “the U.S. Government’s focal point for monitoring foreign compliance with trade agreements to see that U.S. firms and workers get the maximum benefits from these agreements”(emphasis added). None of the related links on the page, however, leads the viewer specifically to labor compliance assistance. The DOC receives complaints about compliance with trade agreements from the TCC “hotline,” industry groups, trade associations, Congress, U.S. Foreign Commercial Service officers, the USTR National Trade Estimates Report, and other sources. It uses its many resources to conduct research on a compliance case. If a case is not resolved short of the dispute resolution process, it may be referred to the Office of the USTR.
The Department of Labor (DOL) is less directly involved in researching issues of labor noncompliance. Petitions for enforcement of a trade agreement are typically researched and prepared by an outside interested party, such as a labor union. That petition is then reviewed by the Trade Agreement Administration and Technical Cooperation Division, within the Department of Labor’s Office of Trade and Labor Affairs at the Department of Labor.
5. Priorities for Disputes to be Pursued by the USTR. To date, no labor dispute under any of the free trade agreements has reached the USTR. Therefore, this discussion is purely hypothetical. Should a case not be resolved short of dispute resolution, the USTR must decide which cases it will pursue based on priorities. The USTR is a small operation. Entering into the dispute resolution process is a lengthy, involved, expensive process in terms of both personnel and resources. The USTR typically chooses cases to pursue based on a number of factors. These may include cases that could showcase or clarify particular issues, strengthen support of U.S. positions, and/or be cases the USTR believes it can win.
Labor disputes could be more difficult to resolve than commercial disputes. This is because the labor principles in the ILO Declaration against which foreign actions could be compared are less detailed and specific. Moreover, under model 4, the USTR may not wish to pursue the enforcement of these principles because if Conventions were to enter the cases as definitions for the principles, this could possibly, as the USCIB argues, subject a number of U.S. labor laws to challenge.
If labor provisions are added, they are not FTAs. We are better off going the other direction to UFT policies, say, by regions.
Posted by: Thomas | March 22, 2008 at 07:17 PM