Mark Aspinwall, author of the must-read 2013 book Side Effects: Mexican governance under NAFTA’s labor and environmental agreements, argues in his August 10, 2017 Forbes piece Learning From The Experience Of NAFTA Labor And Environmental Governance that NAFTA negotiators should create a neutral inter-governmental body to address labor issues under NAFTA similar to the currently existing North American Commission for Environmental Cooperation.
There are three key elements to Aspinwall's proposal, emphasizing the independence of any multi-lateral agency established. One, the inter-governmental agency should have mechanisms to receive complaints from affected civil society groups in any member state. Two, the inter-governmental agency should have authority to conduct independent fact-finding investigations and issue reports under specific rules. Third - and most importantly, since this element is present in the current NAFTA environmental side agreement but not the labor side agreement - civil society should have a permanent role in the functioning of the inter-governmental agency. Aspinwall highlights that civil society should be involved not only in forming priorities and work plans but in participating in compliance oversight of the new inter-governmental agency.
Aspinwall's proposal is compelling and his arguments should be given serious consideration. He rightly points out that the government-to-government dispute mechanism established under the current NAFTA labor side agreement (and, it should be pointed out, every free trade agreement negotiated by the U.S. since) is problematic because of politics and the inevitable conflicts of interest that result from international and national political priorities. On the one hand, a government may not want to pursue a particular issue because of its relationship with the other member state. Similarly, a government may simply not have the interest or political will to pursue labor rights issues.
As Aspinwall points out, there was relatively strong interest under the Clinton administration from 1995 to 2000 to press Mexico on trade union and working women's rights. This interest and related political will waned during the Bush II administration from 2001 to 2008 - causing a severe drop-off in the amount of interest on the part of Mexican trade unions and civil society in using the NAFTA labor side agreement (NAALC) as an advocacy tool. Despite the increased political will of the Obama administration to act creatively and sometimes forcefully in response to complaints filed under labor chapters of free trade agreements, Mexican trade unions and civil society had already moved away from the NAALC. Cross-border labor and civil society movements did not fade with the NAALC. They simply moved to other venues where they felt their efforts were more likely to have an effect - including the OECD Guidelines for Multi-National Enterprises, the ILO Committee on Freedom of Association, multi-stakeholder initiatives, independent labor and human rights commissions, and the negotiating arena of the Trans-Pacific Partnership. Much of the hard work of pressuring the Government of Mexico to implement meaningful labor justice reform occurred during the TPP negotiations.
Aspinwall's argument for an independent labor commission under NAFTA is refreshing because it may almost seem like a quaint, idealistic idea to those who have worked in NAFTA labor arena. The sad fact is that the politics he so correctly highlights in his analysis of government-to-government dispute settlement can also infect and weaken inter-governmental institutions - as was the case with the now closed North American Commission for Labor Cooperation. Convincing North American labor policy makers, trade unions, civil society, and employer groups that a new Commission for Labor Cooperation is a good idea - even an independent and publicly accountable Commission - will be a hard slog and will require overcoming deep layers of skepticism.
The example of the North American CEC's Joint Public Advisory Committee shows that the effort of bringing disparate groups together for genuine dialogue and community building can be worth it. The idea of independent fact-finding and reports in response to labor issues raised under free trade agreements is particularly compelling given recent developments in the trade and labor arena in 2017. Two developments that put U.S. trade and labor policy implementation into jeopardy are the recent U.S. loss to Guatemala in arbitration of Guatemala's labor violations under the CAFTA-DR and the recent change in presidential administrations. While the current administration makes a public show of emphasizing enforcement of free trade labor provisions, its budget proposals make this all but impossible financially.
The problem is determining what entity will serve as the honest broker and neutral convener of the kind of genuine North American labor dialogue and institution building that Aspinwall proposes. The current administration seems like an unlikely convener. As observed by Aspinwall, the current administration's NAFTA negotiation objectives for the environment will actually weaken the CEC by creating rules to guarantee domestic enforcement without independent review. As I have pointed out elsewhere, the negotiation goals for labor are almost purely cosmetic and actually narrow the number of labor laws subject to sanctions. Maybe the Wilson Center and the Mexican Center for Economic Research and Study can get the dialogue going.
