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.

First U.S. labor report under U.S.-Bahrain FTA issued relates to Arab Spring

Check out my latest item in the International Employment Lawyer newsletter on the December 2012 U.S. Labor Department report on labor issues during Bahrain's Arab Spring.  This report breaks new ground for the U.S. Labor Department which for the past 19 years has tended to be reluctant in its reports to openly call out U.S. trading partners for inadequate labor legislation - or in the case of Bahrain, a complete lack of legislation prohibiting workplace discrimination. 

The report discusses the close partnership between the U.S. Departments of Labor and State and the United States Trade Representative (which has ultimate authority for enforcing the provision of the free trade agreement) in investigating the petition filed by the AFL-CIO and negotiating issues with the Government of Bahrain.  While in the past I have criticized the 2004 requirement that the Labor Department consult with other agencies on petitions filed under labor provisions of free trade agreements, it appears that inter-agency cooperation in examination and resolution of these petitions can be a critical element in effective application of FTA labor provisions, especially in cases where peoples' lives and human rights are at stake.  The active involvement of the International Labor Organization in setting up dialogue between Bahraini trade unions, employer groups and government officials also led to the first time workers unlawfully terminated for exercising their trade union rights have been reinstated in the context of a U.S. FTA labor petition.

While the 2012 Bahrain report makes significant advances in the jurisprudence in the area of enforcing labor rights through free trade agreements, human rights advocates found that the year and 4 months it took for U.S. DOL to issue its report sent a signal that the U.S. might not be serious about its commitment to worker rights in Bahrain. Moreover, the human and worker rights issues stemming from Bahrain's Arab Spring are ongoing, as several medics who provided care to demonstrators in 2011 are still incarcerated.

As an interesting side note, the European Parliament is also keeping a close watch on the human rights situation in Bahrain.