Saturday, November 23, 2013

Can NAFTA and CAFTA be used as tools to eliminate indigenous child labor in the Americas?

Sara Shahriari's November 20, 2013 article in Indian Country Today  highlights the prevalence of indigenous child labor in the Americas - particularly exploitation of indigenous child laborers in the Bolivian mine industry.  Indigenous child labor is also prevalent in agriculture throughout the Americas, as highlighted in these studies in Mexico, Guatemala, Honduras, Peru and Costa Rica.  Indigenous girls face particular challenges, as exemplified by this 2008 UNICEF report about the lives and status of indigenous girls in Guatemala.  According to the Mexican National Council to Prevent Discrimination (citing official  government statistics), there are 3.6 million children working in agriculture in Mexico, over a third of which are indigenous - with indigenous child workers suffering additional levels of discrimination on account of their racial and cultural heritage.  Indigenous children also toil in mines and agriculture in Colombia and Peru.  U.S. agriculture employs hundreds of thousands of indigenous workers from Mexico and Central America and child labor is prevalent in U.S. agriculture, but it is unclear what percentage of child workers in U.S. agriculture are indigenous.

In addition to International Labor Organization conventions prohibiting child labor and ILO resources on indigenous child labor - not to mention the ILO's Guidelines on Combating Child Labor among Indigenous and Tribal Peoples cited in Shahriari's article - labor chapters in a number of free trade agreements between the United States and Latin American countries - such as the North American Free Trade Agreement (NAFTA), Central American Free Trade Agreement (CAFTA-DR), U.S.-Peru Free Frade Agreement and U.S.-Colombia Free Trade Agreement - prohibit child labor and discrimination on the basis of race.  The labor provisions in these free trade agreements (FTAs) contain mechanisms for members of the public to file international complaints that can lead to trade sanctions.

There has been skepticism among NGOs and trade unions about the effectiveness of the labor provisions in these FTAs, especially the NAFTA labor side agreement.  Although the NAFTA labor side agreement has been in force for 20 years, there has yet to be a petition filed under the agreement that focuses specifically on the issue of child labor in agriculture, despite the fact that prohibition of child labor is one of 3 out of 11 labor principles which can lead to trade sanctions under the NAFTA labor side agreement. While some petitions filed under the NAFTA labor side agreement have involved racial and ethnic minorities (such as the 2005 Puebla petition, where a number of the workers were indigenous, and the 2006 North Carolina petition, where the majority of the workers were African American), no NAALC petition to date has focused on racial discrimination per se.  Thus, the issue of systemic racism has yet to be formally addressed under the NAFTA labor side agreement - or under any of the other FTAs the U.S. has with nations in the Americas and elsewhere.

A report issued by the U.S. Department of Labor under the CAFTA-DR in September 2013 regarding child labor, forced labor and racial discrimination against Haitian migrant workers in the sugar cane fields of the Dominican Republic is a positive indication that FTA labor provisions may be a useful tool for addressing labor by indigenous and other children in the U.S., Mexico, Central America and South America.  This is the first report issued by the Office of Trade and Labor Affairs (OTLA - the U.S. Department of Labor office tasked with accepting petitions alleging a trade partner violated the labor chapter of an FTA) to address and discuss at length the issues of forced labor and child labor in agriculture.  The petition and findings led to the commitment by current Secretary of Labor Thomas Perez (who is himself of Dominican heritage) of a $10 million project to improve labor conditions in the sugar sector in the Dominican Republic .

While there are numerous existing international and national programs designed to address child labor in the U.S. and Latin America, petitions filed under the above-mentioned FTAs regarding the issue of indigenous child labor could have a significant impact by drawing attention and resources to indigenous child laborers.  An FTA labor petition can get indigenous advocates a seat at the table in policy discussions related to child labor.  It would also afford indigenous advocates and their allies the opportunity to affect and change the bases for policy conversations about indigenous child workers - particularly in addressing and dispelling stereotypes about indigenous parents and families and their motivations for having their children work alongside them or sending their children to work instead of school.  Advocates could make specific education and labor policy proposals and use FTA labor petitions as leverage to get their proposals and ideas on the desks of policy makers.  Under the NAFTA labor side agreement, it is possible to cross-file petitions.  Indigenous and child advocates could file a petition with the U.S. Department of Labor regarding child labor in agriculture in Mexico and at the same time file a petition with Mexican labor authorities regarding child labor in agriculture in the U.S. - and file both petitions with Canadian labor department to involve an international third partner to see through the Gordian knot of U.S.-Mexico relations and leverage creative Canadian policy mechanisms to address common issues in both of Canada's trade partners to the south.  Such a cross- and dual-filed petition might lead to a call for an Evaluation Committee of Experts (ECE) - the 2nd of 3 tiers of dispute resolution under the NAFTA labor side agreement - to draft an independent report about indigenous child labor in agriculture in the NAFTA region.  Similarly, the regional structure in the CAFTA-DR could be leveraged to design policies to combat indigenous child labor at the regional level in Central America.  While the U.S., Mexican and Canadian labor departments have 20 years of experience in accepting and addressing petitions filed under the NAFTA labor side agreement, it is a process that may be new to Central American nations.  Strategically, it might be interesting to dual file indigenous child labor petitions under the CAFTA-DR with Central American nations - for example, filing a petition in Costa Rica about the treatment of indigenous child laborers in Guatemala, or one in Honduras about the treatment of indigenous child laborers from Honduras in Costa Rica - as well as in the United States, to leverage the financial and institutional resources of the U.S. Department of Labor.

Finally, utilizing FTA labor provisions to combat indigenous child labor in the Americas may increase the vitality of these provisions and their capacity to foment positive policy development and exchange on a regional level, especially in the NAFTA region.  Since there is general consensus that child labor implicates fundamental human rights, dual-filed petitions may increase engagement between authorities and advocates across borders to address and eliminate indigenous child labor, including affording the opportunity to child labor specialists in Mexico, Central America and South America to lend their expertise, experience and language skills to their counterparts in the United States.  The NAFTA labor side agreement is in particular need of revitalization, as traditional and more recent disputes between the U.S. and Mexico in the area of labor policy - as well as mutual lack of enthusiasm among the 3 trade partners' labor authorities and social partners - have rendered the agreement's potential for innovative labor market and human rights policy fallow.  As child labor in agriculture is a difficult issue to combat in both the U.S. and Mexico, a dual and cross-filed petition on the issue of indigenous child labor might provide the common ground North American labor authorities need to rebuild their strained and tattered relations.  Since the North American labor departments closed down their joint tri-national labor secretariat in 2010, the labor ministers of the three trade partners have not held North American Labor Council meetings or engaged in cooperative activities as required by the NAFTA labor side agreement.  Since not a single one of the three trading partners has completely clean hands in the areas of racial discrimination against indigenous peoples or child labor in agriculture - but all three countries have active programs to eliminate both - working together to resolve a common issue of basic human rights may afford them an opportunity to rebuild their relationships and eventually engage in North American regional labor policy and research in a more productive fashion and on more sound footing than in the early years of their relationship.

Indigenous child labor in agriculture is an issue in which the cooperative mechanisms engaged in as part of the dispute resolution processes under FTA labor chapters - such as meetings, studies, bringing people to the table and financing special programs - may actually work.  Petitioners would have to craft the petitions and their requests for remedies to include their ideas for what kinds of programs and dialogue they want.  For example, advocates could ask for the participation of educational authorities and experts and have a set of ideas ready for what kinds of social dialogue they want and who should participate.

While the history of application of FTA labor chapters has shown the processes and outcomes to be less than perfect, recent reports and activities exemplified by the 2013 Dominican Republic Sugar Cane Industry report and ensuing action plan show that workers may have some vindication of their allegations and some productive outcomes as a result of petitions.  And, as demonstrated by action by the Centro de Migrante and its allies, petitions filed under FTA labor chapters in conjunction with legislative initiatives related to agricultural labor visas in the United States can lead to administrative and legislative progress on important human rights issues as well as the energizing of communities.