Faber, Emily Miyamoto, "Pregnancy Discrimination in Latin America: the Exclusion of the "Employment Discrimination" from the Definition of "Labor Laws" in the Central American Free Trade Agreement", Columbia Journal of Gender and Law v. 16 (2007) p. 297-336 Abstract: This article criticizes the recently concluded Dominican and Central American Free Trade Agreement (CAFTA) for failing to include prohibitions against workplace discrimination, and in particular discrimination on the basis of pregnancy. The author describes numerous reports documenting widespread gender discrimination in Central America and the Dominican Republic, including mandatory pregnancy tests as a condition of employment. She notes that this omission can not have been an accident, as non-discrimination provisions are part of the International Labor Organization's "core" labor rights and are routinely included in other free trade agreements. Moreover, during the negotiations for CAFTA, officials in the Bush Administration and in the governments of Central America and the Dominican Republic periodically acknowledged the problem of lax enforcement of existing laws against pregnancy discrimination but nevertheless chose to exclude such provisions from the Agreement. After considering several reasons for this exclusion, the author suggests the most likely explanation is that it was part of a conscious "win-win-lose" strategy designed to benefit businesses facing competition from Chinese manufacturers and the government signatories of the Agreement, but not workers in the maquiladoras, the vast majority of whom are women. The article concludes by suggesting several possibilities for reforming CAFTA to increase enforcement of other existing laws banning workplace discrimination. The author also suggests that CAFTA and future free trade agreements provide incentives or rewards to corporations that adopt voluntary self-regulating guidelines and promise to guarantee workers' rights in line with the ILO Core Labor Standards.
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Glass-Hess, Laura, "Ready or Not, Here Comes DR-CAFTA: Comparing the Right of Association in Mexico, Guatemala, and El Salvador", Georgia Journal of International and Comparative Law v. 35 (Winter 2007) p. 333 Abstract: This Note assesses the feasibility of Dominican Republic-Central America Free Trade Agreement's (DR-CAFTA) mirroring of NAFTA's labor regulations as they were embodied in the "enforce-your-own-laws" provisions of the NAALC side-agreement. The author compares the existing right of association laws and enforcement practices of Guatemala and El Salvador with those of Mexico., She concludes that the current statutory structures and rule-of-law situations in Central America are even weaker than those in Mexico. She argues that reliance on soft labor enforcement provisions and strong economic pressures have not improved Mexico's labor rights situation, and hence will harm El Salvador and Guatemala's weaker labor climates. Because of this difference, DR-CAFTA needs a more "hands-on" agreement. She concludes by stating that "without strong enforcement of labor provisions, the DR-CAFTA will only hasten the 'race to the bottom' in Latin America, with disastrous results for Central American workers."
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Lieberwitz, Risa L., "Linking Trade and Labor Standards: Prioritizing the Right of Association", Cornell International Law Journal v. 39 (2006) p. 641-653 Abstract: Prompted by recent debates over linking bilateral, regional and multilateral trade agreements with internationally recognized labor standards, the author argues that proponents of such linkage have erred in placing their focus on mandating substantive workplace rights in trade agreements. The author argues that the most important demand to raise is the "procedural" right of full freedom of association for workers affected by the global expansion of capital and international trade agreements. She argues that the exclusive focus on substantive rights is doomed to failure because it underestimates "the power of transnational corporations to continue their global expansion and search for untapped cheap labor." An emphasis on freedom of association instead would allow greater flexibility for workers to confront localized conditions and pursue their own demands for substantive workplace rights through collective bargaining. By assisting workers in setting and pursuing their own priorities for improved labor standards, the author argues that a regime protecting freedom of association would encourage economic growth and development by preserving the competitive advantage of countries of the global South within the global division of labor. Additionally, the localized control of workers over their own collective bargaining demands would, the author argues, solve many of the on-site monitoring and enforcement problems that have been idenitified by other efforts to link trade and labor standards. Even where freedom of association is unlikely to be adequately enforced in the short term, the author argues that this approach nonetheless provides a more promising alternative because it invests power in those most affected by globalization, and begins the long-term process of building cross-border alliances among unions and workers, rather than perpetuating the notion that workers' interests are necessarily tied to improving the competitiveness of "their" employer, "their" sector, or "their" country, at the expense of workers elsewhere.
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Ohmi, Naoto, "Problems of Foreign Worker Policy in Japan - From the Labor Union Viewpoint", Japan Labor Review v. 2 no4 (Fall 2005) p. 107-124 Abstract: The author, a trade union officer, expresses his views on the issue of foreign workers in Japan. The first section reviews the various issues that arise with the increased number of non-Japanese workers in Japan, including the rise of indirect employment (i.e., dispatch or contract workers), the rise of foreign residents working illegally, and the abuse of foreign trainee programs by employers. The next section discusses Japan's increased focus on free trade agreements ("FTA") and economic partnership agreements ("EPA") with other countries. The author focuses on occupations in the medical and nursing field where there is a shortage in Japan and conflicting views by the Japanese government in allowing foreign workers to fill that gap. The author then examines Rengo's (Japan's nationwide organization of labor unions) views on foreign workers, which advocates the respect of human rights of all foreign workers residing in Japan, but cautions against the acceptance of unskilled foreign workers. The fourth section examines the economic partnership agreements that Japan has with Thailand and the Philippines, both which require the foreign workers from their respective countries to obtain Japanese certification before they are allowed to work in the nursing field in Japan. The article concludes with a discussion of the current labor policy on foreign workers. He argues that the existing policy of only addressing 'entry' issues (i.e., entry requirements, residential statuses) is not sufficient to respond to the issue of foreign workers in Japan, and stresses the importance of adopting a 'post-acceptance' policy to deal with the long-term social and economic effects.
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Richelson, Sarah, "Trafficking and Trade: How Regional Trade Agreements Can Combat the Trafficking of Persons in Brazil", Arizona Journal of International and Comparative Law v. 25 (Fall 2008) p. 857-898 Abstract: Richelson provides an overview of human trafficking, a “rapidly expanding” crime that generates over nine billion dollars in global annual revenue. Brazil is the largest exporter of women and children, often trafficked into sex work worldwide, and also a destination country for trafficked workers. Richelson discusses Brazil’s efforts to combat trafficking in the “triple frontier” region between Brazil, Argentina, and Paraguay, and argues none of Brazil’s responses alone is sufficient. For instance, though Brazil has stepped up the enforcement of anti-trafficking laws and created agencies dedicated to trafficking, Richelson argues police and government corruption inhibits the efficacy of these efforts. The human rights framework, which includes government-sponsored shelters and toll-free help-lines, focuses too exclusively on sex trafficking and ignores labor rights. The author suggests that regional free trade agreements (FTAs) would be a better approach to combating trafficking. FTAs could incorporate a human and labor rights framework and also provide a mechanism to hold governments accountable. They would also change the underlying economic conditions that foster trafficking.
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Speece, Lyndsay D., "Beyond Borders: CAFTA's Role in Shaping Labor Standards in Free Trade Agreements", Seton Hall Law Review v. 37 (2007) p. 1101 Abstract: This comment evaluates the labor standards provisions of the Dominican Republic Central American Free Trade Agreement (CAFTA) based on a model combining the most effective labor standards provisions from existing free trade agreements (FTAs). Unlike the North American Free Trade Agreement (NAFTA), CAFTA includes labor standards provisions within the body of the Agreement itself, so that, to the extent its language is binding, it is subject the same enforcement mechanisms as other provisions in the Agreement. In several other respects, however, CAFTA falls short of existing agreements. Like NAFTA and unlike the U.S.-Jordan FTA, CAFTA's labor standards provisions simply recognize existing domestic laws rather than incorporating international labor standards guaranteeing freedom of association, the right to organize and bargain collectively, the prohibition of forced labor, minimum age requirements for employing children and other minimum wage, hours of work and occupational health and safety standards. And, unlike the Cambodia Bilateral Textile Agreement, there are no incentives, such as guaranteed increases in trade, in return for continued improvement in labor standards. And, unlike the U.S.-Jordan FTA, which sets no limit on the fines that can be imposed for violations of labor standards, CAFTA limits such fines to $15 million per year, adjusted for inflation. The author recommends that future FTAs combine the best practices of existing Agreements and that they not revert to less effective labor standards provisions along the lines of CAFTA.
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Taylor, Chantell, "NAFTA, GATT, and the Current Free Trade System: A Dangerous Double Standard for Workers' Rights", Denver Journal of International Law and Policy v. 28 (Fall 2000) p. 401-435 Abstract: This article contrasts the enforcement mechanisms for protecting corporate and investor rights under the North American Free Trade Agreement (NAFTA) and the World Trade Organization/General Agreement on Trades and Tarrifs (WTO/GATT) with those provisions for the enforcement of labor rights in the International Labor Organization (ILO) and the NAFTA side letter on labor issues, known as the North American Agreement on Labor Cooperation (NAALC). NAFTA provides private investors with standing to sue national governments directly, the right to binding arbitration if an investor believes that a government has breached an obligation under NAFTA that caused the investor to incur a loss and provisions for unlimited damages for corporations when they lose money as the result of a federal law that does not comply with NAFTA. The WTO contains similarly strong enforcement mechanisms for corporations against governments, including penalties and trade sanctions. By contrast, the ILO has no coercive enforcement mechanisms while those included in NAALC are extremely limited. Despite hortatory language in the NAALC concerning freedom of association, the right to bargain collectively, the right to strike, the right to minimum employment standards, and so on, NAALC's Ministerial Council can only hear complaints concerning forced labor, equal pay for men and women, worker compensation, and protection of migrant rights. Further, it is only required to respond to disputes in three areas - child labor, minimum wages and occupational health and safety. Even then, the Ministerial Council may only respond if proof exists of a "persistent pattern of failure by the other Party to effectively enforce" its own labor laws. If the Ministerial Council declines to review a matter, then it may be referred to an Evaluation Committee of Experts, whose remedies are limited to "non-adversarial and non-binding recommendations on the issue." The author argues that protecting workers should be equal to dismantling trade barriers and protecting intellectual property, and considers it an "unacceptable evasion of responsible governance to strategically exclude labor issues from the heart of global commerce."
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Travers, David, "You Have to Fight for your Right to Work: The U.S.-Chile Free Trade Agreement and Global Labor Standards", Suffolk Transnational Law Review no29 (Summer 2006) p. 337-361 Abstract: This article discusses the domestic pressures within the United States and Chile that resulted in the labor standards and enforcement procedures of the U.S.-Chile Free Trade Agreement of 2003. On the one hand, the author argues that the Agreement needed to have some labor standards enforcement provisions in order to appease critics in organized labor and the U.S. Congress. At the same time, however, the democratically elected post-Pinochet government in Chile did not want to be seen as surrendering sovereignty to the United States under the rubric of "international labor standards." The resulting compromise requires Chile to provide access to dispute resolution mechanisms for labor standards violations only if Chile has failed to "effectively enforce its [own] labor laws." This approach is in stark contrast to that of the Free Trade Agreement of 2001 between the United States and Jordan, which provides access to dispute resolution mechanisms in the event of violations of internationally recognized labor standards, such as those embodied in the Conventions of the International Labor Organization (ILO). According to the author, the increased global competition among workers resulting from the relatively loose labor standards of the U.S.-Chile FTA will force the North American workforce prioritize education and skills training, thereby "replac[ing] the idea of entitlement with competition, making hard-work and dedication to self-improvement through education life-long necessities." The author concludes that the Chile Agreement's approach to labor standards should serve as a model for other U.S. trading partners in future free trade agreements.
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Weiss, Marley, "Two Steps Forward, One Step Back - Or Vice Versa: Labor Rights Under Free Trade Agreements from NAFTA, Through Jordan, via Chile, to Latin America, and Beyond", University of San Francisco Law Review v. 37 no689 (2003) Abstract: This article examines the ever-expanding set of free trade agreements (FTA) being negotiated by the United States, all of which are built upon the pattern created under the North American Free Trade Agreement (NAFTA) and the North American Agreement on Labor Cooperation (NAALC), the NAFTA side agreement. It explores the successes and failures of the NAFTA/NAALC model in an effort to improve the development of future FTAs. Part II summarizes the main elements of the NAALC labor rights regime, and compares them to the approaches taken in five separate trade agreements and one piece of U.S. trade legislation. Part III outlines the enforcement procedures and remedies provided under NAALC, analyzes cases brought under it, and identifies deficiencies in the operation of NAALC. Part IV questions whether progress in negotiating effective, enforceable labor rights provisions is in fact being made in the FTAs discussed in Part II. It concludes with a discussion about the prospects for conjoining labor rights and free trade agreements in the future.
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