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  Trade Agreements
 
Alben, Elissa, "GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link", Columbia Law Review v. 101 (2001) p. 1410-1447

Abstract:
This article traces the early history of the General Agreement on Tariffs and Trade (GATT) to argue that the while GATT is certainly amendable to linking labor standards with trade negotiations, the language of the Agreement and the historical understanding of what constituted "fair" trade is difficult to reconcile with the dominant contemporary approach to fair labor standards. The author focuses on debates in 1953 about whether to admit Japan to the GATT, and notes that at the time of Japan's petition for admission, an interpretation of fair trade that would have permitted trade sanctions for "unfair labor conditions" was rejected in favor of a wage-based understanding of fair trade. Based on this early history, the author writes that Article XX of the WTO, a provision often relied upon by modern advocates of linking trade and labor standards, "was not crafted to address labor standards concerns, or even human rights principles generally," but was more likely "designed to prevent countries from obtaining a comparative advantage through extreme forms of cost minimization." By contrast, most contemporary discussions of what constitutes "fair" trade relies the four fundamental labor rights adopted by the ILO in 1998 - freedom of association and collective bargaining, elimination of compulsory labor, abolition of child labor and protection against discrimination in employment. The author posits that the shift away from a wage-based approach toward the newer human rights approach might be a way to avoid the accusations from developing countries that it is protectionist to link trade to labor standards because their low wages are their main source of comparative advantage. While history "is not on the side of those who advocate entirely delinking trade and labor issues," the author concludes that the considerable difference between the original wage-based understanding of labor standards incorporated into the 1947 GATT and the more recent human rights understanding based on the ILO fundamental rights should compel scholars and labor activists to choose between returning to wage-based concepts of labor standards or resorting to "interpretive strategies" that seek to redefine provisions of the GATT in ways that will establish a link between human rights and trade issues.

Subjects: International Labour Organization (ILO), Japan, NAFTA/GATT, Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 3
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Antoine, Rose-Marie, "Rethinking Labor Law in the New Commonwealth Caribbean Economy: A Framework for Change", Comparative Labor Law & Policy Journal v. 32 no2 (Winter 2011) p. 343-371

Abstract:
This article questions the philosophical underpinnings and current manifestation of the “inherited contract model” of labor law as applied in Caribbean countries adhering to the the British common law tradition. It begins by presenting a historical perspective on Caribbean labor - particularly the region’s deeply rooted race and social inequities. The author argues that the contract model is inappropriate for an economy dominated by part-time, informal, and “atypical” work. She proposes instead that the region’s labor laws should embrace the need for development and be better aligned with the realities of the contemporary work environment. In particular, she argues that trade issues must no longer be divorced from labor law. Labor law must insert itself into the region’s burgeoning industries: tourism and the offshore financial sector. The author argues that labor regulation need not lead to inefficient markets; rather, labor lawyers might look to alternative development models and integrationist theories.

Subjects: Framework Agreements, Trade Agreements
Newsletter: Vol 10, Issue 6
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Ashiagbor, Diamond, "Labor Law and Development: Perspectives on Labor Regulation in Africa and the African Diaspora: Embedding Trade Liberalization in Social Policy: Lessons from the European Union?", Comparative Labor Law & Policy Journal v. 32 no2 (Winter 2011) p. 373–443

Abstract:
The author argues that the European Union’s (EU) model for protecting Member States from the shocks of trade liberalization—“social regionalism”— undermines equitable global trade. Social regionalism’s “internal” policy is designed to protect Member States from liberalized trade, yet within the EU is it is de-regulatory, focusing on reducing unemployment by facilitating worker retraining. The internal policy also includes mass expenditures to less developed members for adjusting to redundancies, restructuring, and insolvencies. Social regionalism’s “external” policy for mitigating shocks from liberalized trade with non-EU partners includes aggressive competition in open markets. It involves a shift from multilateral to bilateral trade agreements with industrializing partners that fragment the latter’s existing regional governance and thus perpetuate asymmetric bargaining power. The author argues that social regionalism’s internal and external components are inseparable, but that its external components subvert the autonomy of industrializing trading partners necessary to develop analogous regional institutions and national welfare states that can mitigate trade shocks, promote competitiveness, and effectuate labor rights provisions inserted in trade agreements.

Subjects: Comparative Labor Law, European Union, Trade Agreements
Newsletter: Vol 11, Issue 4
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Banks, Kevin, "Trade, Labor and International Governance: An Inquiry into the Potential Effectiveness of the New International Labor Law", Berkeley Journal of Employment and Labor Law v. 32 (2011) p. 45-142

Abstract:
This article evaluates the effectiveness of new international labor governance systems, focusing on the recent Canadian-Colombian Agreement on Labor Cooperation and the US-Colombia FTA. In particular, it looks at how international governance will influence political relationships among different states. The author assesses four governance models to improve respect for international labor standards: (1) adjudication and sanctions-based constitutionalism, (2) sunshine and moral suasion, (3) development cooperation, and (4) leveraged deliberative cooperation. He argues that most successful implementations of international labor standards have included economic incentives rather than sanctions. The article also considers whether international standards interfere too much with national politics while lacking effective accountability. He also discusses how certain reforms have been applied by international tribunals. The article ultimately proposes an ideal agreement based upon the deliberative cooperation model of governance. Finally, the article critiques how the ILO is being implemented and suggests ways for it to be more successful.

Subjects: International Labour Organization (ILO), Trade Agreements
Newsletter: Vol 12, Issue 5
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Barry, Christian & Reddy, Sanjay G., "Global Justice and International Economic Arrangements: International Trade and Labor Standards: A Proposal for Linkage", Cornell International Law Journal v. 39 (Fall 2006) p. 545-637

Abstract:
The authors argue for making rights to trade conditional upon promotion of labor standards. They detail the five standard objections to such "linkage"-that it is: inconsequential, an inferior means of improving labor standards, creates an unfair distribution of burdens, is politically imperialistic, and is unfeasible. Their "constructive procedure" identifies various linkage proposals that avoid these objections. To demonstrate the feasibility of linkage, the authors conclude with a detailed example of how a linkage system based on WTO institutions and overseen by the ILO would work in practice. Two useful appendices use UNIDO industrial statistics to chart the likely effects of improvement in labor standards on labor costs.

Subjects: International Labour Organization (ILO), Labor Rights as Human Rights, Labor Rights in General (Misc.), Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 7
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Estreicher, Samuel, "'Think Global, Act Local': Employee Representation in a World of Global Labor and Product Market Competition", Labor Lawyer v. 24 no3 (Winter 2009) p. 235-265

Abstract:
Trade unionism among private sector workers around the world is in decline. The author begins by describing four general explanations that theorists put forth for this decline, including the “Global Product and Labor Market Competition” explanation. Next, he describes two models of workplace representation “the Redistributive Bargaining Agent” model and the “Integrative Bargaining Agent”ť model and explains how these models interact to create distinct brands of unionism in different parts of the industrialized world. The author then describes how the global market and international competition have made it harder for workers to unionize and more difficult for nations to enact meaningful labor standards. Finally, the author posits that the best solution to this global labor crisis is for unions in each country to develop innovative policy solutions that give a voice to workers without harming employers’ economic performance.

Subjects: Comparative Labor Law, Employee Participation and Works Councils, Outsourcing, Trade Agreements
Newsletter: Vol 9, Issue 9
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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.

Subjects: Case Studies: Country-Specific, Free Trade Agreements, Health and Safety, Trade Agreements, Women’s Rights, Workplace Discrimination, Workplace Harassment
Newsletter: Vol 6, Issue 4
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Fernandez-Kelly, Patricia, "NAFTA and Beyond: Alternative Perspectives in the Study of Global Trade and Development", Annals of The American Academy of Political and Social Science (March 2007) p. 266-287

Abstract:
This article introduces and summarizes 12 articles which assess the multiple meanings of “free trade,” in particular NAFTA, as a neoliberal political-economic project. To place the volume in intellectual and political context, the author gives a concise but fluid history of the practices and ideas of liberalism from the 1870s to the present. This includes discussion of how early liberalism, utilitarianism and libertarianism, as well as the economic upheavals of the 20th century, contributed to neoliberalism. Neoliberalism represents a continuation of earlier theorists’ faith in individual freedom, and in practice has yielded uneven and unexpected effects.

Subjects: NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 6
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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. 333-368

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."

Subjects: CAFTA, Case Studies: Country-Specific, Free Trade Agreements, NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 7
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Helfer, Laurence R., "Nonconsensual International Lawmaking", University of Illinois Law Review no1 (2008) p. 71-126

Abstract:
This article discusses nonconsensual international lawmaking-defined as the creation of a binding legal obligation on a member state to a treaty or international organization where the state has not ratified or acceded to the obligation-in the areas of antiterrorism, environmental standards, and human rights, including labor standards. Consensual lawmaking implicates concerns of state participation. Such lawmaking suffers from the problem that goals are diluted through the exercise of negotiation and compromise so that the resulting treaties are weaker and have less enforcement mechanisms than the alternatives. Nonconsensual lawmaking, on the other hand, can trigger "sovereignty costs," i.e. a lessening of a state's ability to govern its territory. The author contends that sovereignty costs do not always arise in antiterrorism or environmental agreements, they are likely in the arena of international human rights. The author argues that states may tolerate a moderate amount of nonconsensual lawmaking in the area of human rights if such lawmaking enlarges a treaty system that already contains consensually adopted amendments and protocols. He cites the European and Inter-American human rights systems as exemplars of this incrementalist dynamic.

Subjects: Labor Rights in General (Misc.), Trade Agreements
Newsletter: Vol 7, Issue 9
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Kay, Tamara, "Legal Transnationalism: The Relationship Between Transnational Social Movement Building and International Law", Law & Social Inquiry v. 36 (Spring 2011) p. 419

Abstract:
The author traces the history of the North American Agreement on Labor Cooperation (NAALC), which is the labor-side component of the North American Free Trade Agreement (NAFTA). NAALC was designed to increase labor standards across the continent, and to establish legal mechanisms for addressing labor complaints. Union leaders have criticized NAALC because it has not raised labor standards, and some argue that post-NAFTA labor conditions in Mexico have gotten worse. The author argues that despite NAALC’s ineffectiveness as law, it has had unintended beneficial consequences. Specifically, NAALC has helped workers in the US, Canada, and Mexico form a collective identity, which has encouraged cooperation and cross-border enforcement of labor rights. The author argues that this cooperation may build into a transnational workers movement that could have the effect NAALC promised.

Subjects: NAFTA/GATT, Social & Economic Rights, Trade Agreements
Newsletter: Vol 13, Issue 4
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Kolben, Kevin, "The New Politics of Linkage: India’s Opposition to the Workers’ Rights Clause", Indiana Journal of Global Legal Studies v. 13 (2006) p. 225-258

Abstract:
Based on interviews with Indian government officials, employers, labor activists, journalists, and others, this article documents and categorizes some of the more salient arguments made by lesser developed countries (LDCs) against proposals by Western scholars and labor activists to link international trade and improved labor standards through the inclusion of a workers' rights provision (or "social clause") within the WTO framework. The author delineates three basic categories of arguments – economic, political and structural – typically made as part of the LDCs’ case against linkage. Economic arguments against linkage generally involve concerns that calls from the West to improve labor standards ultimately stem from protectionist motives and that linking trade and labor standards will have the effect of protecting the domestic markets of the Western countries from cheap goods, thereby reducing trade and employment in the LDCs. Political arguments against linkage are often directed at protecting sovereignty and opposing globalization, which is understood as serving the interests of world financial institutions. Thus, some Indian labor activists and unionists who oppose the WTO, the World Bank and the IMF, will not support a social clause in the WTO, for fear that doing so would legitimize, but not fundamentally alter, the oppressive nature of structural adjustment programs, neoliberalism and other aspects of these institutions. Structural arguments focus on deficiencies of the WTO for enforcing labor standards. For example, some interviewees pointed out that the ILO, as the organization most knowledgeable about labor rights issues, should be strengthened rather than relying on the WTO, which has relatively little familiarity with issues of labor standards. Similarly, because the WTO is a treaty between governments, only governments but not unions or NGOs would have standing to raise complaints for violations of a proposed social clause. Another concern expressed is that trade sanctions are too blunt an instrument because they punish an entire national economy and cannot be calibrated to reach only those employers who violate labor standards while rewarding those employers that honor them. The author concludes by suggesting that scholars and activists who support linking labor rights and trade pay closer attention to the concerns voiced by the various sectors of Indian society and government and that, for the near future, regional trade pacts and bi-lateral agreements are the more likely fora in which to achieve linkage labor standards and trade issues.

Subjects: Case Studies: Country-Specific, India, International Labour Organization (ILO), Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 2
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Kolben, Kevin, "Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and Labor Regimes", Harvard International Law Journal v. 48 no203 (2007) p. 203-256

Abstract:
The article discusses the protection of workers’ rights through a process that integrates public and private regulatory approaches to enforcement, an approach the author terms “Integrative Linkage.”ť Part I synthesizes the policy rationales underlying the linking of trade agreements and labor standards in order to illustrate how Integrative Linkage can serve these principles. Part II looks at the current approaches to enforcement practiced by the World Trade Organization, unilateral legislation, and bilateral trade arguments. The author contends that these approaches are ineffective in improving working conditions and enforcement of worker protection provisions. Part III criticizes systems of private regulation for under-enforcement and for setting narrow goals that do not serve the public policy rationales. Nonetheless, the author maintains that private regulation can be a vital supplement to public regulatory approaches if implemented in a way that helps facilitate the development of civil society, increases transparency of employer practices, and can potentially change norms on the ground level. The article uses Cambodia as an example of a country that has positively utilized many features of the Integrative Linkage process, making Cambodia a desirable destination for clothing companies. The author concludes by presenting his own proposal for a model of Integrative Linkage that he maintains would be practically successfully while meeting the broader public policy objectives.

Subjects: Case Studies: Country-Specific, Trade Agreements, World Trade Organization (WTO)
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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.

Subjects: Collective Bargaining, Free Trade Agreements, Labor Rights in General (Misc.), Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 5
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McDonald, Adrian, "Through the Looking Glass: Runaway Productions and Hollywood Economics", University of Pennsylvania Journal of Labor and Employment Law v. 9 (2007) p. 879-984

Abstract:
This article discusses the problem of "runaway production," i.e., the production of films that were conceptually developed in the United States, but filmed elsewhere. It attributes the phenomenon to the transformation in the movie industry that has occurred over the last 50 years whereby the movie studios have become subordinate parts of multinational media conglomerates such as News Corp., Viacom, America Online-Time Warner, and Disney. The author argues that labor costs are generally not a consideration in the movement of filming from the U.S. to Canada, because Canadian labor costs are comparable to those in the U.S. Rather, he identifies other incentives such as tax breaks granted by the Canadian government as the lure for film makers. By contrast, labor costs apparently are a factor in the movement of film production within the United States, typically from the major media markets in California or New York to "right to work" states, where non-union pay and benefits are as much as 83% less than in unionized settings. The article discusses the different solutions to runaway production proposed by industry and labor groups. The Directors Guild of American and major industry groups advocate greater federal, state and local subsidies to the motion picture industry to counter the effect of Canadian tax breaks. Alternatively, the Film and Television Action Committee (FTAC), a single-issue group composed of the major Hollywood unions, city governments and businesses that depend on film production, argues that Canada's tax breaks violate U.S. trade agreements. FTAC has threatened to file a petition with the U.S. Trade Representative and the WTO.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Trade Agreements, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 11
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Mumford, Todd, "Voluntary International Standards: Incorporating 'Fair Trade' within Multilateral Trade Agreements", Southwestern Journal of Law and Trade in the Americas v. 14 (2007) p. 171-192

Abstract:
This article proposes the incorporation into existing multilateral trade agreements, such as the North American Free Trade Agreement (NAFTA), a uniform and voluntary set of international labor standards, which could be certified by third party nongovernmental organizations (NGOs). The model for this proposal derives from the U.S. Department of Agriculture's adoption of a standardized definition for "organic" food products, which, under the Organic Foods Production Act of 1990, provides a uniform set of standards, which can nonetheless be monitored the certification processes of multiple third party NGOs. The underlying concern of the author is to ensure uniformity in the meaning of "fair trade," so as to prevent a proliferation of competing definitions which may be used by big businesses to evade compliance and ultimately undermine consumer confidence in the integrity of the "fair trade" label. The author points out that such uniform standards are not prohibited under the terms of NAFTA or other multilateral free trade agreements, so long as they do not function as a "technical barrier to trade."

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.), NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 7, Issue 7
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Reichman, Daniel, "Justice at a Price: Regulation and Alienation in the Global Economy", Political and Legal Anthropology Review v. 31 (2008) p. 102-117

Abstract:
This article compares and contrasts three aspects of the international coffee trade violence by landless Honduran families against the foreign and absentee owner of a coffee farm, fair trade consumerism in the global North, and the now defunct system of wage and price controls of the International Coffee Agreement (ICA) that have collapsed under increasingly globalized market condition since1989 to suggest that structural changes in the relationship between states brought on by globalization have led citizens to attempt to impose collective principles on economic behavior through new, albeit partial and alienated, forms of regulation outside the boundaries of the nation-state. The author sees the popular violence in Honduras and the increasing preoccupation with"fair trade" coffee in the North as symptoms of the demise of the ICA; in the absence of regulation by laws, treaties and states, people resort to localized and highly individualized behaviors to comprehend their role as moral actors within the impersonal global market. Despite their emphasis on moral affirmation and personal responsibility, the author sees these forms of political subjectivity as inadequate to the task of regulating the global economy in the interest of social solidarity.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Corporate Accountability, NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 7, Issue 11
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Russo, Robert, "A Cooperative Conundrum? The NAALC and Mexican Migrant Workers in the United States", Law & Business Review of the Americas v. 17 no1 (Winter 2011) p. 27-38

Abstract:
While much analysis of the North American Agreement on Labor Cooperation (NAALC) tends to focus on its failure to effect changes to working conditions in Mexico, says the author, here the analysis is on the disappointing results of the agreement for migrant workers in the US. The article begins with a critique of the NAALC framework: the author says it is a partnership that exacerbates inequalities inherent in the different bargaining countries and otherwise takes a soft-law approach to workers’ rights. Next, the author goes on to examine how the US fails to implement the NAALC’s theoretical labor protections for Mexican migrant workers: first, by limiting the its definition of “migrant worker” to workers with legal documents; then, by failing to prosecute violations due to political considerations and slow-moving bureaucracy. The author finds this soft-law framework unacceptable, given the hard-law approach needed to protect migrant workers’ rights in the US.

Subjects: Framework Agreements, Freedom of Association, Immigration, NAFTA/GATT, Trade Agreements, Undocumented Workers
Newsletter: Vol 11, Issue 8
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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. 1101-1126

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.

Subjects: CAFTA, Free Trade Agreements, NAFTA/GATT, Trade Agreements
Newsletter: Vol 7, Issue 4
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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."

Subjects: Free Trade Agreements, Labor Rights in General (Misc.), NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 3
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Trubek, David, "The Emergence of Transnational Labor Law", American Journal of International Law v. 100 (2006) p. 725-735

Abstract:
This essay reviews recent books by Bob Hepple, Philip Alston, and Kimberly Elliot & Richard Freeman that address the need for a more effective transnational system of institutional protections to enforce worker rights and raise labor standards in an increasingly global economy. According to Trubek, all of the books are pluralist in their outlook and embody a new “transnational vision” one that relies on both “hard” and “soft” enforcement measures, public and private norms, and various levels of governance, including, where necessary, international financial institutions such as the World Trade Organization and regional trade pacts to create minimal labor standards. However, despite their convergence, Trubek points out that there are numerous issues about which these leading proponents of transnationalism disagree. Areas of disagreement include such fundamental issues as: whether labor standards can promote growth and development; whether globalization necessarily entails a “race to the bottom” with respect to labor standards; the proper balance between “hard” enforcement mechanisms, such as trade sanctions, and “softer” approaches, such as private codes of conduct, publicity campaigns and calls for consumer boycotts; the future role (if any) of the United Nations in setting and enforcing international labor standards; and the potential for the European Union, the proposed Free Trade Area of the Americas and other regional trade pacts to provide the same level of protection to workers rights that they currently afford to international investments and intellectual property rights. While Trubek endorses the transnationalist project, he suggests that transnationalist scholars need to devote more attention to the specific strategies and institutions necessary to construct an effective system of global labor standards.

Subjects: International Labour Organization (ILO), Labor Rights in General (Misc.), Trade Agreements
Newsletter: Vol 6, Issue 2
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Wells, Don, "Best Practice in the Regulation of International Labor Standards: Lessons of the U.S.-Cambodia Textile Agreement", Comparative Labor Law & Policy Journal no27 (2006) p. 357-371

Abstract:
This article is a post-mortem assessment of the U.S.-Cambodia Textile Agreement (UCTA), which went into effect in 1999 and expired in 2005. The UCTA was unique among U.S. trade agreements in several respects. By linking increased market access to systematically and publicly monitored increased compliance with labor standards, it was the only bilateral U.S. trade agreement to use market incentives instead of punishments to motivate government and employer compliance with labor standards. Also, UCTA used the ILO, rather than private firms or NGOs, to monitor compliance with labor standards, thereby making claims of improved working conditions under the UCTA more credible than similar claims under other trade agreements. The author notes that between 1999 and 2004, Cambodia went from one of the worst violators of core ILO labor standards to ranking ahead of all its regional competitors in compliance. Based on these reports of increased compliance, the United States increased Cambodia’s garment export quota in each year of the agreement, so that Cambodia’s apparel exports increased four-fold over the life of the UCTA with about two-thirds of these exports going to the U.S. market. Because the value of these quota increases far outstripped the costs of increased compliance, employers in the Cambodian garment industry – most of which is foreign owned – could afford to pay higher wages to garment workers. Although the author notes that there were some problems of implementation and enforcement, particularly in protecting freedom of association and reducing anti-union discrimination, he concludes that the UCTA has benefited Cambodian garment workers, and that, with appropriate modification, the UCTA serves as a potential model to be replicated and extended to other countries and other industries.

Subjects: Case Studies: Country-Specific, International Labour Organization (ILO), Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 2
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Wu, Mark, "Free Trade and the Protection of Public Morals: an Analysis of the Newly Emerging Public Morals Clause Doctrine", Yale Journal of International Law v. 33 (2008) p. 215-269

Abstract:
The article discusses "public morals exception" clause of the General Agreement on Tariffs and Trade, which allows states to depart from the free trade principles of the treaty when "necessary to protect public morals." Labor scholars and advocates of international labor standards have argued that the clause, Article XX, should be interpreted to enable a government to impose trade restrictions against a particular good whose production violates international labor standards, such as soccer balls produced with child labor. Thus far, only one case has explicated the meaning of this clause – U.S.-Gambling, in which the Carribean country of Antigua brought a WTO complaint against the United States for banning crossborder gambling and internet betting services ostensibly to counter organized crime, money laundering and fraud and to protect the "public health and morals" of its citizens A WTO Appellate Body held that the United States could ban internet gambling from entering its territory if it could show that the measure was not done for discriminatory purposes. Because the U.S.-Gambling case involved a country claiming to protect the morals of its own citizens, it does not address other kinds of fact patterns of great concern to labor advocates. The article concludes by discussing several alternative approaches for deciding future cases under the "public morals" exception, including originalism (restricting public morals to those matters intended in1947 when the GATT was signed), unilateraism (allowing each country to define and act on its own definition of public morals) and transnationalism (requiring that the public morals be either universally or at least widely recognized before serving as a legitimate basis for trade sanctions).

Subjects: NAFTA/GATT, Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 7, Issue 4
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