Can free trade work for all? Canada throws down gauntlet as U.S. attempts to avoid labor obligations imposed on its trade partners

One of the purposes of the May 14, 2015 conference Working for All? New Ideas and Innovative Strategies to Enhance Economic and Social Benefits in Trade Agreements co-hosted by the GWU Elliott School and the International Labor Organization was to shake up Washington policy discussions about incorporation of labor, human rights and social welfare concepts in free trade agreements.

For me, remarks made by Pierre Bouchard (Director of Bilateral and Regional Labour Affairs, Canada) were the highlight of the conference.  Bouchard used the event to highlight a tricky negotiation point with the United States Trade Representative regarding labor provisions in the Trans-Pacific Partnership currently under negotiation.  While the U.S. has made strides in strengthening labor provisions in free trade agreements negotiated after NAFTA, in fact the U.S. has inserted a footnote in each of the post-NAFTA free trade agreements to make sure these broader FTA labor provisions do not apply to the 50 U.S. states, the District of Columbia and U.S. territories like Puerto Rico.  This actually decreases the level of obligation the U.S. agreed to in the NAFTA labor side agreement (NAALC) which contains no such limitation.*  Canada, unlike recent U.S. trading partners like Peru, Singapore, Bahrain and the Central American nations, seems to have both the leverage and the willingness to press this point with USTR.  For U.S. labor rights advocates who have utilized the NAALC as a tool to press for improved labor law enforcement at the federal and state level, it is critical that the Government of Canada prevail on this point.  Hopefully other trading partners in the TPP support Canada in this endeavor if for no other reason than the U.S. should not impose international labor obligations on its trading partners that it is not willing to commit to itself.

Other remarks to highlight during the conference include:

• The Trans-Pacific Partnership eliminates labor law exemptions for Export Processing Zones in member states (Carol Pier, Deputy Undersecretary, International Labor Affairs, U.S. Department of Labor).
• Globalization and trade have traditionally been engines of inequality and their gains have not been broadly shared (Lance Compa, Senior Lecturer, Cornell University).  Compa also shared his experiences with the Fruit of the Loom labor rights framework in Honduras.
• Switzerland and China have negotiated a free trade agreement with labor provisions (Silvia Formentini, Trade and Sustainable Development, European Commission).
• Chile has negotiated free trade agreements with labor provisions with, in succession, Canada, the U.S., the EU, Japan and now China.  As a comparatively smaller country and economy, Chile must adopt different tactics with each of these trade partners (Pablo Lazo Grandi, Permanent Mission of Chile to UN in Geneva).
• Canada ratified the ILO Forced Labor Convention (No. 29) as a result of negotiating a free trade agreement with the EU (Pierre Bouchard).
• Freedom of Association has been seen as a barrier to the Right of Establishment and Investment in the EU (Tonia Novitz, University of Bristol.  For more information, see this 2010 European Parliament briefing note The Impact of the ECJ Judgments on Viking, Laval, Ruffert and Luxembourg on the Practice of Collective Bargaining and the Effectiveness of Social Action or Novitz's 2008 piece A Human Rights Analysis of the Viking and Laval Judgments). 
• The EU Employer Federation is in favor of ILO standards in the Transatlanltic Trade and Investment Partnership/TTIP (Thomas Zielke, Representative of German Interest and Trade).

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 * In fact, a number of NAALC complaints filed with Canada and Mexico allege ineffective labor law enforcement by  U.S. state authorities as well as federal authorities - particularly the Washington Apple, De Coster Egg Packing, New York Workers' Compensation cases (not to mention the North Carolina Public Workers case which is still pending with Canadian authorities).