Nuno Ferreira publishes nuanced and balanced analysis of EU Roma policy

Nuno Ferreira of Sussex University has published an excellent nuanced and balanced analysis of the EU's Roma policy.

Ferreira's 2019 contribution A Roma European crisis road-map: a holistic answer to a complex problem, a chapter in the book Constructing Roma Migrants European Narratives and Local Governance, dissects each element of the EU's law and policy designed to address discrimination, deprivation and inequality in the Roma community in Europe.

The chapter outlines each of the frameworks applied by EU law and policy - which cover anti-discrimination, integration, and human rights and minority protection laws and policies - cogently parsing the achievements and limits of each. The chapter also contrasts the EU's legal and policy framework with that of the Council of Europe (CoE), embedding a comparison of case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The author goes on to recommend a holistic approach that blends all of the approaches discussed, writing,

The complex and web-like vicious circles described here are extremely hard to address by isolated or sectoral policies, and thus require a holistic, complex and dynamic approach by the EU institutions (p. 40).

Of particular interest is the author's critique of the EU's integration policy toward the Roma. As an alternative, the author recommends that the EU and member states adopt a stance of convivencia, which would respect the dignity and culture of the Roma, and policy measures involving cultural mediators and intense consultation and dialogue to develop bottom-up solutions rather than top-down solutions.

A highly recommended read! Better yet, the entire Constructing Roma Migrants book is open access and can be downloaded in its entirety.

Rose-Marie Belle Antoine knocks it out of the park with new article on intersectionality and gender discrimination in the Caribbean

The inaugural issue of the University of Oxford Human Rights Hub Journal is out - and readers will
not be disappointed.

The first gem in this treasure trove is the excellent article by Professor Rose-Marie Belle Antoine, An Intersectional Approach to Addressing Gender and Other Forms of Discrimination in Labour in the Commonwealth Caribbean. This article analyzes the intersection of race and gender in discrimination against women in multi-ethnic societies in Trinidad and Tobago and other Caribbean nations.

Nothing is left out. Every axis is explored - not just racial divides and how they amplify gender discrimination, but how urban-rural divides, internal acceptance of external gender and racial identities, inadequate child care, and national laws, regional trade frameworks, and international economic trends all impact and keep women in poverty.

If you are interested in any of these topics, you should race to the Oxford Human Rights Hub website and download and read this article immediately.

USDOL failure to address sex discrimination claims in CAFTA-DR Honduras Report and Action Plan puzzles, disappoints

In early 2015, the U.S. Department of Labor issued its much-anticipated report on trade unions' public submission contending that the Government of Honduras failed to set high labor standards and effectively enforce existing labor laws.  The 143-page report confirmed petitioners' claims, observing that some progress was made during the 3 years since the petition was originally filed but that the Honduran Ministry of Labor (Secretaría de Trabajo y Seguridad Social - STSS) continues to fall short in responding to complaints, conducting inspections and remediating workplace violations.  The report made 7 recommendations for improvement of STSS labor inspections including imposing sanctions for labor law violations, compelling access to worksites, compelling employer compliance with remediation orders and improving enforcement of laws related to freedom of association, collective bargaining and child labor.

Notably absent from USDOL's report was any reference to or acknowledgement of claims of systemic sex discrimination in the Honduran garment sector outlined by petitioners in their 2012 public submission.  Petitioners highlighted the discriminatory nature of Honduras' industry-based minimum wage setting mechanism which set wages significantly lower in the predominantly female garment sector than in other manufacturing sectors (p. 4) and pointed to NGO reports of high levels of mistreatment of women workers in the form of verbal abuse, shoving, punching, denial of meal breaks, sexual harassment, sexual assault, sex-motivated dismissals and pregnancy discrimination (p. 5).

A critical element of petitioners' overall argument in the submission was that discriminatory low wages paid in the garment sector directly affects trade between the U.S. and Honduras (p. 5), thereby violating Honduras' commitment under CAFTA-DR Article 16.1(1) to strive to set high labor standards in conformity with the 1998 ILO Declaration on Fundamental Principles and Rightsat Work and its Follow-Up.

Despite early criticism that USDOL's report was incomplete (See Mateo Crossa, "Honduras: US Government Fails to Act to Prevent Labor Rights Violations," The Americas Blog, CEPR, March 19, 2015), the Labor Rights Monitoring and Action Plan signed by the labor ministers of the U.S. and Honduras on December 9, 2015 fails to include specific measures to address the problem of workplace sex discrimination in Honduras.  Like the February 2015 report, the Monitoring and Action Plan (MAP) does not contain a single word, commitment or timeline related to addressing the issue of sex discrimination, pay equity or sexual harassment in labor law enforcement, workplace inspections or training for STSS personnel.

USDOL's silence on the issue of sex discrimination in the Honduran garment sector and other industries is puzzling in light of recent reports and actions it has taken in response to submissions filed under the CAFTA-DR and other U.S. free trade agreements.  Since 2009, the Obama Administration has pressed its trading partners not only to improve enforcement of existing labor laws but to achieve a higher standard by passing laws that give life to fundamental labor standards in the ILO Declaration.  Examples include issuing a report exhorting the Government of Bahrain to pass a law prohibiting discrimination based on religion and other grounds; commissioning a series of studies on how to identify indicators of forced labor and slavery in the modern era; and designating funds to eradicate child labor in the Dominican Republic.  Any or all of these responses would have been appropriate in response to the sex discrimination claims raised in the Honduran labor petition under CAFTA-DR - and in fact could form the basis of a work plan to address workplace sex discrimination in Honduras.

By ignoring claims of sex discrimination in its report and action plan in response to the Honduras CAFTA-DR petition, USDOL has demonstrated that it is out of sync with the rest of the international community. The United Nations Conference on Trade and Development (UNCTAD) acknowledged as early as 2004 that gender equality is a universal goal and that trade can have important positive and negative implications for women - recommending in its seminal note Trade and Gender:  Opportunities, Challenges and Policy Dimension that women's concerns and role in the economy should be considered in the development of trade policy.  As discussed in the 2002 United Nations guide Gender Mainstreaming An Overview, gender mainstreaming has been a part of international policy making for the last two decades.  Even the World Bank came out in support of workplace childcare facilities because it is good for women's labor force participation, as discussed in Markus Goldstein's September 2013 piece "Building the evidence based roadmap for women's economic empowerment" in the World Bank's Development Impact blog.

The essence of the concept of gender mainstreaming is that issues affecting women in particular must be addressed and incorporated into international policy making.  "Mainstreaming should situate gender equality issues at the centre of analyses and policy decisions, medium-term plans, programme budgets, and institutional structures and processes" (UN 2002, pp. v-vi).  The UN emphasizes that attention to gender issues must be explicit and systematic (p. vi).

In the case of the USDOL report on and action plan for improved workplace law enforcement in Honduras, it is not enough to simply expect that enhanced protections for trade unions and improved labor inspection methods and follow-through in general will address the particular issues faced by working women in Honduras. USDOL and the Obama Administration must explicitly account for and respond to working women's issues in Honduras.

In my mind, there was always a question whether USDOL would embrace the concept of equal pay for equal value implicit in petitioners' argument.  U.S. law recognizes the concept of equal pay for equal or similar work under the 1963 Equal Pay Act, but does not go as far as Canadian law, which recognizes the concept of equal pay for work of equal value - where the work being performed in a predominantly female sector is different but of equal value to work performed in a predominantly male sector (as explained in this November 2015 Ontario Equal Pay website).

What can USDOL do to remedy the situation?

The important question for USDOL, Honduran trade unions and women's rights advocates and their international allies is What now?

USDOL has a number of tools at its disposal to address the big gender gap left by its report on labor law standards and enforcement in Honduras and the resulting Action Plan.

• Commission a series of studies gathering data for and identifying indicators of sex discrimination, unequal pay schemes, pregnancy testing/discrimination and sexual harassment among its trade partners.  USDOL commissioned such a series of studies from NGO Verité on forced labor indicators in 2008-2011.  One of these studies - on forced labor in the sugar supply chain in the Dominican Republic - was referred to in USDOL's report in response to a CAFTA-DR petition.

• Work with Central American women's advocacy groups and trade unions along with the Labor Affairs Council established under Article 16.4 of the CAFTA-DR to develop a Model Code to Eliminate Sex Discrimination, Violence Against Women and Unequal Pay in Central American workplaces.  A 2013 study produced by COVERCO (Guatemala) and other groups in Central America observed that the inequitable minimum wage setting mechanism present in Honduras is present in all of the Central American nations - contributing to overall poverty and lack of well being in these nations.

• Provide technical support and funding for workplace childcare initiatives such as that agreed to by Honduran employers and trade unions in the 2014 Tripartite Agreement on Employment in the Maquila Sector.  In addition to setting forth a schedule for periodic wage increases, the agreement commits employers to establish workplace child care centers on a pilot basis - a pilot that has yet to be launched, no doubt due to lack of support and funding.

• Work with women's rights groups, trade unions and international experts to develop best practices for a gendered approach to workplace inspections to identify unequal pay, sex discrimination in promotion and sexual harassment and violence.

• Address USDOL's own shortcomings in addressing gender issues in labor petitions filed under trade agreements by developing and implementing a policy that mainstreams gender in its day-to-day activities, investigations and reports.

• Work with the U.S. Department of State, its Central American counterparts, Central American Women's Rights Commissions, trade unions and women's civil society groups in Central America to negotiate a binding Memorandum of Understanding on Women's Rights and Economic Empowerment covering the entire CAFTA-DR region.

What can women's groups and trade unions do to remedy the situation?

Women's advocacy groups, trade unions and their allies have tools and options at their disposal as well.  Among others, these include:

• Work through existing networks of women's rights groups and trade unions in Central America to file a region-wide sex-discrimination petition under CAFTA-DR Chapter 16 to challenge unfair wage setting mechanisms and inadequate protections against workplace sex discrimination and workplace violence.  The problem with the 2011 Honduras CAFTA-DR petition was that gender issues were buried among over 25 different instances of failure to enforce labor laws in several sectors of the economy.  Focusing solely on sex discrimination will ensure that the subject will not be ignored.

• Go to Canada.  The United States is not the only actor in the global trade arena with a mechanism for filing claims that a country is not complying with internationally recognized labor standards.  Not only does Canada have more advanced pay equity laws than the U.S., its Labor Cooperation Agreement with Honduras specifically requires Honduras to ensure that its labor law and practices embody and provide protection for the elimination of discrimination with respect to employment occupation.  Under CAFTA-DR, member states are only obligated to "strive to ensure" their labor laws comport with the 1998 ILO Declaration.

It is not fair for working women in Honduras to have to "resubmit" their petition for equal treatment under Honduran labor law.  This was already part of the 2011 petition.  Honduran women - like all women throughout the world - know that if they don't do it, who will?  It is only with constant and sustained pressure that their voices will be truly heard.

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.

Solman and Sum discuss the major impact current jobless recovery in the U.S. has on minority teens

Having called on EU and European authorities to take radical action to address unemployment among racial minority youths in the EU, I am both surprised and unsurprised to read in Paul Solman's interview with Andrew Sum that jobless rates for young black teens in the U.S. exceed 90% - about the same rate as jobless rates for Roma youth in Eastern Europe.

Clearly, the EU isn't the only continent that needs to take radical, concerted action to address unemployment among minority youth, who already face a number of barriers when it comes to accessing the labor market.  With state and local governments buckling under financial pressures as a result of the financial crisis, college-educated workers displacing workers with high school diplomas and those with high school diplomas taking the jobs that those without a high school diploma would take, unemployment among the least advantaged in our society has soared.

How does the EU's strategy against racial discrimination compare to that of the NAFTA region?

Next week ILERA's 10th European Regional Conference is happening in Amsterdam, Netherlands.  The theme is Imagining New Employment Relations and New Solidarities.  Most of the papers are up and can be downloaded here.  The conference has a lot of great themes and papers which I look forward to highlighting and discussing in this blog over the next few weeks.

My own paper discusses and analyzes the effectiveness of the European Union's strategy against racial discrimination.  As in the United States, where unemployment rates among African Americans and Latinos are 2 to 3 times those among the majority, the European Union has major disparities in employment outcomes for racial and ethnic minorities in comparison to the majority population.  In Europe, racial and ethnic minorities are generally defined as "Third Country Nationals" or second and third generation third country nationals - basically, people who migrate to the EU from non-European countries.  The Roma (previously known as Gypsies) are also included as ethnic minorities, but with a separate set of problems. 

The European Union differs significantly from the NAFTA region because it has a number of legal and policy instruments that can be utilized to combat racial discrimination on a regional basis, including the Race Equality Directive of 2000, a regional European Employment Strategy and its various progeny and updates like Europe 2020 and a European Social Fund. Sadly, we do not have these kinds of instruments at our disposal in our region.  So the EU has several steps up the regional ladder in comparison to the NAFTA region, and we should look at these examples for regional policy making - a subject for further research.  Moreover, EU institutions like the European Commission and European Parliament are constantly reviewing and revising both policies and outcomes with the goal of improving their effectiveness.  EU institutions also systematically involve trade unions and employer groups in the establishment of regional labor market policy, something that was not done under the NAFTA labor side agreement before the North American Commission for Labor Cooperation Secretariat closed in 2010, and which has been done rarely in U.S. policy.  A rare instance in the U.S. case is when trade unions and employer groups got so exasperated with inaction on Capitol Hill that they partnered together to push a joint Immigration Reform agenda.

Nevertheless, the investment of significant regional resources by the EU into combating racial discrimination - which is critical to the maintenance of EU social security systems in the future due to changing demographics - has not really had a huge (if any) impact on reducing high unemployment among Europe's racial minorities.  It could simply be a matter of time.  It has been less than 15 years since these laws and policies were put into place.  My analysis is that these policies are ineffective for a couple of reasons, however.  The primary reason is Europe's racial minorities are perpetually defined as "Other" and "Not European" with the use of the term "third country national."  Other major reasons include not systematically including representatives of racial minority groups in designing regional law and policy.  The EU is simply not asking the right questions of the right people.  Finally, not enough attention is paid to existing economic survival strategies of European immigrant communities.

So the EU's strategy against racial discrimination is light years ahead of that of the NAFTA region (which does not have one) but it depends on how the the EU strategy adapts and evolves over the next several years to see if it will have a genuine impact.

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.