Wednesday, May 8, 2013

Update on progress of labor petition under U.S.-Bahrain FTA

Yesterday the U.S. Department of Labor announced that the U.S. Trade Representative formally requested ministerial consultations with Bahrain regarding shortcomings in Bahraini labor law related to freedom of association and protection from discrimination.  While such a step was recommended in USDOL's December 2012 report, the request must be formally made per diplomatic protocol in order for the process to begin.  In the March 2013 National Advisory Committee at USDOL, USTR explained that it wanted to give the Bahraini Government an opportunity to rectify the situation before proceeding formally.

USTR's letter to the Bahraini Government is particularly interesting given the robust interpretation of language in the U.S.-Bahrain FTA's labor chapter that the trading partners must strive to ensure that rights enshrined in the ILO Declaration on Fundamental Rights at Work are recognized and protected by law.  The "strive to ensure" language has been criticized as being too weak to result in meaningful protection and promotion of rights, but its usage in the USTR's letter indicates that meaningful rights protection can derive from the obligation.  Such a robust interpretation of the "strive to ensure" language implies a distinction between a country not having the institutional or budgetary capacity to recognize and protect rights but making a "good college try" and a country that does not appear to be trying at all.  Given the lack of meaningful legal protections for freedom of association in Bahraini law and the fact that that Bahrain does not have legislation prohibiting workplace discrimination, it appears the trading partner has fallen on the wrong side of this distinction.

If the two trading partners are unable to resolve the matter through ministerial consultations, a Subcommittee on International Labor Affairs will be convened.