Time for enforceable women's rights provisions in U.S. free trade agreements - starting with the proposed U.S.-Kenya FTA

 

My new IntLawGrrls post on the proposed U.S.-Kenya free trade agreement highlights the opportunity the FTA presents to the Biden administration and the U.S. Congress to transform U.S. trade policy through the adoption of enforceable women's rights provisions in U.S. free trade agreements.

The United States is falling behind the European Union and other countries like Canada, Chile, and Kenya in the adoption of gender-forward trade provision.

Update - February 13, 2021

Thanks to Aleydis Nissen of Leiden University who reached out and shared her excellent 2020 piece in AfronomicsLaw, "Where is the flower power these days? The EAC-EU Economic Partnership Agreement." Nissen's piece is full of up-to-date economic data and, importantly, an insightful analysis of the geopolitical and legal status of the Eastern African Community (EAC) and potential impact of the EAC-EU Economic Partnership Agreement on women's rights in the floricultural sector in Kenya.

Coming later in 2019! 2nd edition of NAFTA and the NAALC 25 Years of Trade-Labour Linkage

Look in this space later in 2019 for more information about the release of the Second edition of NAFTA and the NAALC Twenty(Five) Years of North American Trade-Labour Linkage!

The new edition will contain a new chapter comparing NAFTA's labor provisions in the NAALC with the labor chapter in the recently negotiated but not ratified United States Mexico Canada Agreement (USMCA).

Other new information to be included:

• labor provisions in the Trans-Pacific Partnership (TPP) and its post-US withdrawal successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTTP);
• sustainable development and labor provisions in the Canada-European Union Trade Agreement (CETA); 
• The European Union's 2016 proposal for trade, sustainable development, and labor provisions in stalled FTA negotiations between the US and the European Union for a Trans-Atlantic Trade and Investment Partnership (TTIP);
• recent labor-related developments in the renegotiation of the EU-Mexico free trade agreement; and
• the latest on recent petitions filed under North American FTA labor provisions in Jordan, Guatemala, Honduras, and Colombia - 
• not to mention four new NAALC petitions related to Mexico's ongoing labor justice reform, freedom of association at a grocery chain in Mexico, and sexism in recruitment for agricultural labor visa programs in Canada and the United States.

Stay tuned!

Europe and the World law review dedicates issue to EU extraterritoriality, human rights, and trade

For all you free trade and human rights nerds out there, Europe and the World a Law Review - a new peer-reviewed, open access law review -  dedicated its second issue to the inter-relationship between extraterritoriality of EU human rights law and social norms with EU free trade and public procurement policies.

Edited by Professor Christina Eckes of the University of Amsterdam, Professor Piet Eeckhout of University College London, and Associate Professor Anne Thies of the University of Reading, Europe and World a Law Review has a companion blog for shorter pieces.

The October 2018 issue of Europe and the World a Law Review is guest-edited by Dr. Vassilis Tzevelekos of the University of Liverpool and Dr. Samantha Velluti of University of Sussex. The issue focuses on extraterritoriality of EU Law and Human Rights after the 2009 Lisbon Treaty.

The articles in the issue are based on a 2017 workshop held at the University of Sussex on EU human rights obligations in relation to external action. The articles raise the question of whether conditionality in EU international agreements - particularly free trade agreements in the area of human rights and social norms - falls under the concept of extraterritoriality.

Of particular interest to trade and human rights and social norms nerds is the obligation in Article 3(5) of the Treaty on the European Union (TEU) that the EU contribute to free and fair trade, eradication of poverty, and the protection of human rights. Professor Gammage explores this obligation in the excellent article "A critique of the extraterritorial obligations of the EU in relation to human rights clauses and social norms in EU free trade agreements."

Other articles in the issue explore the binding nature of human rights norms toward individuals outside member state territory who are affected by EU trade and investment policies (Berkes); the EU's extraterritorial obligations in occupied territories (Ryngaert & Fransen); extraterritoriality of human rights norms in public procurement in the context of global supply chains (Corvaglia and Li); and the effectiveness of EU public procurement standards as applied through external trade policies (Sanchez-Graells).

The adoption of the 2030 Sustainable Development Goals by the UN in 2015 obligates the world community to end poverty, improve health and education, reduce inequality, protect our planet, and spur economic growth. Achieving these goals will require an overhaul of our global trading system and its priorities - not an easy task. The authors' exploration of extraterritoriality of EU human rights and social norms in the context of free trade agreements and public procurement in this special issue of Europe and The World a Law Review is a thought-provoking springboard for the hard work ahead of us.

Mexico moves toward elimination of labor protection contract system with some hurdles along the way

The practice of protection unionism in Mexico appears to be on its way out - though slowly, with several bumps in the road.  In early 2017, the Mexican Congress passed sweeping constitutional reforms to eliminate protection unionism through replacement of tripartite labor boards with independent labor courts.

My recent piece in the ABA Section of Labor and Employment Law International Newsletter provides an update on legislative efforts to implement the constitutional reforms. According to Proceso, a leading political analysis magazine in Mexico, President Peña Nieto's administration introduced the reforms to meet labor commitments as part of the process of negotiation the Trans-Pacific Partnership.

Labor protection contracts exist at the intersection of international labor standards, free trade, and corporate compliance - particularly compliance with the U.S. Foreign Corrupt Practices Act (FCPA).  Long denounced by Mexican and international labor and human rights activists, these contracts are negotiated by employers and representatives of "official" unions before a company opens its doors - and without the participation or knowledge of workers.

Less recognized by Mexican and international companies that engage in protection unionism in Mexico is the serious corporate compliance risk presented by the practice because of the current configuration of tripartite labor boards in Mexico.  Payments made by employers to leaders of "official" unions may in fact be payments to government officials, since these individuals often serve as labor representatives on tripartite labor boards and as officials in local and federal government.  For example, as reported by Proceso in 2010, after signing a labor protection contract, an employer in the State of Jalisco paid 2,000 pesos a month to a trade union leader for "paperwork processing."

In recent years, Mexico has increased its efforts to eliminate corruption and bribery of government officials.  In March 2018, the labor department of the State of Jalisco introduced a new campaign against corruption.  Mexico will not eliminate government corruption without eliminating the practice of protection unionism, however.

U.S.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement

 

US FTAs have had labor clauses since 1994, but do they actually work?  See my comment in the International Labor Case Law Journal on the recent controversial CAFTA-DR Guatemala labor arbitration decisiron.

I'd also like to draw your attention to some other articles in the current issue of the International Labor Case Law Journal on the Bangladesh Accord, compulsory trade union dues in Brazil, collective bargaining in the public sector in Peru, a new decision from the European Court of Human Rights on wage deductions and forced labor, equal pay for work of equal value in Germany, a fascinating Dutch case in the Democratic Republic of Congo under the OECD Guidelines, and labor standards and the World Cup.

The ILRC was established four years ago and has proven to be an important resource on international labor law developments.  One of the nice things about the ILRC is that the case comments are all concise and to the point. They can be accessed free in PDF format, though the actual case reports and decisions can only be accessed with a subscription.

New article assesses FTA labor provisions from gender perspective

My forthcoming article in the Comparative Labor Law & Policy Journal assesses labor provisions in US and Canadian free trade agreements both generally and from a gender perspective. See SSRN for a link to the article:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3056990. See this IntLawGrrls piece for a sketch of the main arguments and points made in the article.

Policy makers and advocates in both countries have made great strides in the past quarter century since NAFTA was negotiated, but much work remains to be done.  The key to progress has been creative advocacy efforts by trade unions and workers' human rights advocates on the one hand and intelligent, creative, and responsive problem solving methods by policy makers.

The article shows how both advocates and policy makers have overcome definitional and procedural shortcomings in FTA labor provisions to make them useful tools for worker rights advocacy.  It also highlights weaknesses and shortcomings in the texts of FTA labor provisions that must be addressed to make them truly transformational.

Voice and Transparency in Aaronson's May 2015 paper "New Ideas to Empower US and European Workers in TTIP"

Earlier this year I had the opportunity to participate in an exciting survey administered by Susan Aaronson of the George Washington University Elliott School on how best to incorporate worker rights in the Transatlantic Trade and Investment Partnership (TTIP), a free trade agreement being negotiated between the United States and the European Union.  One of Dr. Aaronson's primary projects is Make Trade Policy More Trusted, Transparent and Accountable at the GWU Institute for International Economic Policy.  Participating in the survey gave me and the other 22 respondents a chance to get some of our ideas and recommendations into trade and labor policy discussions while TTIP negotiations are ongoing.  Some of the ideas I had that made it into the final paper were (1) inclusion of provisions to address human trafficking; and (2) emphasis on utilization of creative international cooperation mechanisms like the Joint Public Advisory Committee which has been an innovative and effective mechanism for public involvement in the North American Commission of Environmental Cooperation.

Susan Aaronson's resulting paper Working by Design New Ideas to Empower US and European Workers in TTIP was released at a joint ILO-GWU conference held in Washington, DC on May 14, 2015.  In addition to the findings and recommendations resulting from the survey, the paper captures some of the misgivings many have about the possible negative impacts the TTIP could have on workers' rights, particularly on strong labor and social welfare protections in most European Union member states.  The paper also captures key differences in the US and EU approaches to labor rights in free trade agreements (See p. 7).

One of the most compelling recommendations from the survey is that labor, human and social welfare rights should be considered and incorporated throughout the text of the US-EU free trade agreement (instead of in just a single chapter) as a way to advance labor rights and increase employment (See pp. 12, 21).  Aaronson points to a proposed "regulatory coherence" chapter that could have a negative impact on worker rights as its aim is to "ensure that domestic regulations, such as environmental regulations, health and safety standards or workplace regulations do not distort trade" (p. 13).  She cites a 2015 ETUI policy brief written by Aida Ponce titled TTIP:  fast track to deregulation and lower health and safety protection for EU workers as an example of how a US-EU free trade agreement regulatory coherence chapter might lower workplace standards in the EU.  Two other proposed chapters that could have a negative impact on worker rights are the proposed services and investment chapters.

The paper also includes some other survey recommendations of note such as:

• Improvements to the labor dispute process under TTIP (p. 22); 
• Periodic (every 5 years) reporting on the TTIP's impact on the realization of ILO core labor rights (p. 23);
• Specific exclusion of minimum or living wage laws, collective bargaining agreements, public procurement standards and public health and welfare regulations from the Investor-State Dispute provisions (p. 21);
• Establishment of an independent Secretariat to resolve disputes, issue reports, conduct research and engage in innovative projects to promote worker rights (p. 23); and
• Improved transparency in the TTIP negotiation process to allow the public to better understand how the agreement will expand employment and protect labor rights (p. 24).

The Working by Design paper takes a hopeful stance on ways the TTIP might be used to improve the lives in hundreds of millions of workers in the U.S. and Europe.  Nevertheless, I am left wondering if strong worker and social protections in almost every EU member state might be interpreted as trade distortions under a less than artfully crafted US-EU free trade agreement, leading to erosion rather than improvement of standards.

Finally, while I enjoyed the ILO-GWU conference (and picked up some useful tidbits of updated information) where the Working by Design paper was released, I wonder if the traditional conference format of 15-minute speeches and audience questions is the best way to come up with genuinely creative ideas.  In over 15 years of speaking at and attending international and comparative labor and employment conferences, only once have I attended an event that had an alternative format which captured and improved upon the ideas of the participants - the First Hispanic Forum on a Safe and Healthy Environment held in Orlando in 2003.  At the First Hispanic Forum on a Safe and Healthy Environment, participants were divided into 3 groups where we worked with facilitators to discuss and develop our ideas into a final set of recommendations which were then merged together in a single document on the final day of the Forum.  Maybe the next step in the Working for All work stream should be the First Global Forum on New Ideas and Innovative Strategies to Enhance Economic and Social Benefits in Trade Agreements - where the audience teaches the speakers rather than the other way around.

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).

All hype or maybe some light? May 14 ILO Conference on New Ideas on incorporating labor and human development issues in Free Trade Agreements

The draft agenda is out for the May 14 Conference Working for All? New Ideas and Innovative Strategies to Enhance Economic and Social Benefits in Trade Agreements, co-hosted by the International Labor Organization and George Washington University in Washington, DC.  Speakers include a number of thought leaders and policy makers in the subject area.  Will it all be hype and more of the same ideas everyone has had for the last two decades?  Or will there be genuine dialogue leading to transformative ideas for future policy development and action?  Don't forget to register - and if you can't attend, tune in here for analysis and response.