Abstract
In employing the conceptual framework of external labor governance, Oehri provides a nuanced picture of how the USA fosters workers’ rights in Mexico, Morocco, and the Dominican Republic. Drawing on the analysis of the NAALC, the US-Morocco FTA, the CAFTA-DR, extensive interview data, and relevant documents, “US External Labor Governance: Imposing Sanctions or Providing Assistance?” illustrates that US external labor governance is characterized by mechanisms that address labor rights’ violations hierarchically and work on the enhancement of labor standards in a cooperative and horizontal manner. It furthermore reveals that the approach the US opts for in practice is dominated by providing assistance rather than imposing sanctions. The chapter concludes with a discussion on the generalizability of the case studies’ findings.
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Notes
- 1.
See also the Office of the US Trade Representative (USTR) website at https://ustr.gov/trade-agreements/free-trade-agreements (accessed July 2016).
- 2.
Much of the rhetoric during the NAFTA debate consisted of stereotypes about Mexico, including many misperceptions of Mexican labor and employment law. A comparative analysis of labor and employment law in Mexico and the USA revealed that in reality, Mexican labor and employment law is in many ways more protective of workers than US law. Furthermore, Mexican unions are considered to be more powerful than their American counterparts (Befort & Cornett, 1996, pp. 270–271).
- 3.
- 4.
The labor provisions in the NAALC do not refer to ILO conventions in general (International Labor Organization, 2013, p. 31) nor to the CLS in particular. The absence of a reference to the latter is explained by the fact that the NAALC was established in the early 1990s, that is before the CLS were adopted (Coordinator, Labor Hemispheric Policy Division, Mexican Secretariat of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social de México), personal interview, April 18, 2012; Director, Office of Trade and Labor Affairs (OTLA), US Department of Labor (USDOL), personal interview, May 14, 2012; Senior Legal Officer, International Labor Standards Department (NORMES), ILO, personal interview, July 20, 2012).
- 5.
It is considered impossible to create transnational labor rules due to national differences with regard to legal systems and historic and social backgrounds (Attorney, Attorney’s Office Gil Elorduy, Yárritu y Asociados, S.C., Mexico, personal interview, April 9, 2012; Labor Attorney, Attorney’s Office Gil Elorduy, Yárritu y Asociados, S.C., Mexico, personal interview, April 9, 2012; Coordinator, Labor Hemispheric Policy Division, Mexican Secretariat of Labor and Social Welfare, personal interview, April 18, 2012; see also Finbow, 2006, p. 65). In particular, Mexico refused to cede sovereignty over its national labor market institutions to external forces as it feared infringements on its very sensitive network of corporate employment relations by its superior neighbor (Dombois, 2006, p. 242).
- 6.
This is the first time the USA and partner states experimented with such public participation provisions (Aaronson & Zimmerman, 2008, p. 173).
- 7.
A tentative framework for submission, review, and reporting responsibilities of the US NAO was published in a United States Government (1993) Federal Register note.
- 8.
Reasons to decline the submission’s acceptance for review occur if the submission does not identify the submitter, is not signed and dated, or is not sufficiently specific to determine the matter and permit an appropriate review. It can furthermore be declined if the statements do not constitute a failure of another party to comply with is obligations, if appropriate relief has not been sought under the domestic laws, if a matter is pending before an international body, or the submission is substantially similar to a recent submission and significant new information has not been made available (United States Government, 1994).
- 9.
Each Evaluation Committee of Experts normally consists of three members who are selected by the council from a roster of experts developed in consultation with the ILO (Art. 24.1).
- 10.
- 11.
In the USA, the Secretary of the NAO is to consult with appropriate entities of the US Government before making recommendations to the Secretary of Labor regarding the pursuit of a dispute resolution (United States Government, 1994).
- 12.
Members of the arbitral panel are chosen from the Expert Roster of the council, a roster of up to 45 individuals who are willing and able to serve as panelists (Arts 30.1–2).
- 13.
The rules of procedure include the right to at least one hearing before the panel, the opportunity to make initial and rebuttal written submissions, and that no panel may disclose which panelists are associated with majority or minority opinions. The panel has to examine whether there has been a persistent pattern of failure to effectively enforce occupational safety and health, child labor, or minimum wage technical labor standards, and to provide findings, determinations, and recommendations (Arts 33.1–3).
- 14.
As part of the further proceeding, the complainant may request in writing that a panel be reconvened to determine whether the party complained against is implementing the action plan (Art. 40).
- 15.
- 16.
Along with cross-national dialog venues, the NAALC allows the establishment of national labor dialog settings, such as the National Advisory or the Governmental Committee (Arts 17–18). As the focal point of this study is cross-national and not national labor dialog, the functioning of these committees is not considered in this chapter.
- 17.
Information available on the USDOL website at http://www.dol.gov/ilab/trade/agreements/naalc.htm (accessed August 2014); see also Arestoff-Izzo, Bazillier, Duc, & Granger-Sarrazin (2008, p. 60); Finbow (2006, pp. 74, 92); Lazo Grandi (2009, pp. 8–9); and Nolan García (2011b, p. 38).
- 18.
According to Kay (2005, 2011), the NAALC can even be seen as a “catalyst” for transnational labor cooperation: Before the establishment of the NAALC, Mexican and American trade unions were mainly concerned about domestic labor violations and ignored their counterparts or were partly even hostile to each other. However, they approached each other during the NAFTA negotiations in order to enhance their voice against the agreement and intensified their collaboration even more by jointly using the complaint mechanism of the NAALC.
- 19.
The submission on the Honeywell case is available on the USDOL website at http://www.dol.gov/ilab/submissions/pdf/US_940001_Honeywell_submission.pdf (accessed August 2014). The submission on the General Electric case is available on the USDOL website at http://www.dol.gov/ilab/submissions/pdf/US_940002_GE_submission.pdf (accessed August 2014); see also Compa (1995, p. 165).
- 20.
The public review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/US_940001_Honeywell_report.pdf (accessed August 2014).
- 21.
The submission is available on the USDOL website at http://www.dol.gov/ilab/submissions/pdf/US_940004_GE_submission.pdf (accessed August 2014).
- 22.
Information available on the USDOL website at http://www.dol.gov/ilab/trade/agreements/naalc.htm (accessed August 2014).
- 23.
The submission is available on the USDOL website at http://www.dol.gov/ilab/submissions/pdf/US_940003%20_Sony_Submission.pdf (accessed August 2014).
- 24.
The report of review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/US_940003%20_Sony_report.pdf (accessed August 2014).
- 25.
The ministerial agreement is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/minagreemt940003.htm (accessed August 2014).
- 26.
The follow-up report is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/US_940003_Sony_followup.pdf (accessed August 2014).
- 27.
The submission is available on the USDOL website at http://www.dol.gov/ilab/submissions/pdf/MexicoSubmission2011.pdf (accessed August 2014).
- 28.
Director, OTLA, USDOL (personal interview, June 12, 2013); see also United States Government (2012a, p. 39265).
- 29.
Director, OTLA, USDOL (personal interview, June 12, 2013).
- 30.
Information available on the USDOL websites at https://www.dol.gov/ilab/trade/agreements/naalc.htm and https://www.dol.gov/ilab/media/pdf/ChedrauiNAFTAComplaint_12November_English.pdf (accessed March 2016).
- 31.
- 32.
Information available on the USDOL website at http://www.dol.gov/ilab/trade/agreements/naalc.htm (accessed August 2014) and on the NAALC website at http://www.naalc.org/userfiles/file/NAALC-Public-Communications-and-Results-1994-2008.pdf
(accessed August 2014).
- 33.
Particularly under the Bush Administration with the Secretary of Labor Chao, not only were labor complaints neglected but the scheduling of meetings in the framework of complaints was also refused (Nolan García, 2011a, p. 104).
- 34.
Whereas to some extent the cases nevertheless caused corrective actions by the Mexican authorities and led to the resolution of difficulties (Aspinwall, 2013, pp. 94–95, 121), to some extent labor-related problems remained after ministerial consultations, as exemplified by the Sony case of 1994. The number of cases which could have been brought to an arbitration panel is unknown (Nolan García, 2011a, p. 101).
- 35.
This is also true for all other submissions under the NAALC. Information available on the USDOL website at http://www.dol.gov/ilab/trade/agreements/naalc.htm (accessed August 2014.)
- 36.
Information available on the NAALC website at http://new.naalc.org/naalc/4year-review/annex_1_iac.htm (accessed August 2014).
- 37.
Information available on the NAALC website at http://www.naalc.org/publications/annual_reports/annual_report_1998/council_of_ministers_1998.htm (accessed August 2014).
- 38.
Director, OTLA, USDOL (personal interview, June 12, 2013); Official 2, OTLA, USDOL (personal interview, June 12, 2013).
- 39.
Information available on the NAALC websites at http://www.naalc.org/commission/ministers/ministerial_council_meetings.htm and http://www.naalc.org/commission/ministers/Council_Designee_Meetings.htm (accessed August 2014); see also Nolan García (2011a, p. 102).
- 40.
Director, OTLA, USDOL (personal interview, June 12, 2013).
- 41.
Minutes of the US National Advisory Committee meeting (March 19, 2013), available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/NAC/20130319NAC-minutes.pdf (accessed August 2014).
- 42.
For further information on the seminar see the NAALC website at http://www.naalc.org/coop-activities/YES.htm (accessed August 2014). The USA furthermore funds child labor projects in Mexico conducted by the ILO (Officer, Regional Office for Latin America and the Caribbean, ILO, personal interview, December 4, 2013).
- 43.
For more examples of cooperative activities in areas other than child labor, discrimination in the workplace, and migrant work, see, for instance, Finbow (2006). For current activities conducted by the USA in Mexico see the USDOL website at http://www.dol.gov/ilab/projects/ (accessed August 2014).
- 44.
This influence has also been referred to as the “agenda-setting effect” (Nolan García, 2011a, p. 101).
- 45.
Information available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/US_940001_Honeywell_report.pdf (accessed August 2014); see also Compa (1995, p. 176).
- 46.
Information available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/minagreemt940003.htm (accessed August 2014).
- 47.
For a detailed illustration of the complaints’ consequences see the USDOL website at http://www.dol.gov/ilab/trade/agreements/naalc.htm (accessed August 2014) and the NAALC website at http://www.naalc.org/userfiles/file/NAALC-Public-Communications-and-Results-1994-2008.pdf (accessed August 2014); see also Aspinwall (2013, pp. 98–100) and Finbow (2006, pp. 74, 92).
- 48.
For a detailed picture of the decrease in the budget during the Bush Administration between 2000 and 2005 see also Elliott (2004, p. 7).
- 49.
Chief, Monitoring and Enforcement of Trade Agreements Division, OTLA, USDOL (personal communication, May 1, 2013).
- 50.
Chief, Monitoring and Enforcement of Trade Agreements Division, OTLA, USDOL (personal communication, May 1, 2013). Given the increase in labor-related activities which referred to public submissions, the NAO’s role had already become more prominent (Finbow, 2006, p. 197).
- 51.
Information available on the NAALC website at http://new.naalc.org/userfiles/file/CLC-Migrant%20Workers%20-%20English.pdf (accessed August 2014).
- 52.
Director, OTLA, USDOL (personal interview, June 12, 2013).
- 53.
See also the Heartland Alliance International website at https://www.heartlandalliance.org/about/ (accessed October 2015).
- 54.
Information available on the USDOL website at https://www.dol.gov/ilab/projects/summaries/2015_10_06_Mexico_Project_Summary_2015.pdf (accessed October 2015).
- 55.
Chief, Asia, Europe, MENA Division, Office of Child Labor, Forced Labor, and Human Trafficking (OCFT), USDOL (personal interview, June 12, 2013); Director, OTLA, USDOL (personal interview, June 12, 2013); Official, Evaluation and Monitoring of International Negotiations, International Agreements Division, Mexican Secretariat of Economy (Secretaría de Economía de México) (personal interview, April 16, 2012). In general, the USA constitutes an important donor for child labor projects conducted by the ILO in Mexico (Officer, Regional Office for Algeria, Libya, Morocco, and Tunisia, ILO, personal interview, November 7, 2013).
- 56.
On the negotiation process see also the USTR website at http://www.ustr.gov/archive/Document_Library/Press_Releases/2004/June/United_States_Morocco_Sign_Historic_Free_Trade_Agreement.html (accessed September 2014).
- 57.
In detail, the Act requires “to promote respect for worker rights and the rights of children consistent with core labor standards of the ILO…and an understanding of the relationship between trade and worker rights” (Trade Act of 2002, 19 U.S.C. § 3802(a)(6) (2006)). More precisely, labor standards in this context mean the right of association, the right to organize and bargain collectively, a prohibition on the use of any form of forced or compulsory labor, a minimum age for the employment of children, and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health (3813 (6)); see also Alston (1993, p. 6) and Labor Affairs Committee report at http://www.ustr.gov/archive/assets/Trade_Agreements/Bilateral/Morocco_FTA/Reports/asset_upload_file809_3122.pdf (accessed August 2014).
- 58.
See also the USTR websites at http://www.ustr.gov/about-us/press-office/fact-sheets/archives/2004/june/morocco-fta-leads-progress-labor-reform (accessed August 2014) and http://www.ustr.gov/archive/Document_Library/Fact_Sheets/2004/Morocco_FTA_Leads_to_Progress_on_Labor_Reform.html (accessed August 2014).
- 59.
Information available on the USTR website at http://www.ustr.gov/archive/Document_Library/Press_Releases/2004/June/United_States_Morocco_Sign_Historic_Free_Trade_Agreement.html (accessed August 2014).
- 60.
US Congressman Diaz-Balart (2004), information available on the USTR website at http://www.ustr.gov/archive/assets/Document_Library/Transcripts/2004/June/asset_upload_file409_3734.pdf (accessed August 2014).
- 61.
Information available on the USTR website at http://www.ustr.gov/archive/Document_Library/Press_Releases/2004/June/United_States_Morocco_Sign_Historic_Free_Trade_Agreement.html (accessed August 2014).
- 62.
These standards differ to some extent from the ILO CLS as the former do not contain any provisions for non-discrimination rights. The latter, in contrast, integrate the Equal Remuneration Convention, 1961 (No. 100) and Discrimination Convention, 1958 (No. 111). Furthermore, internationally recognized labor rights include acceptable conditions of work with respect to minimum wage, hours of work and occupational safety and health which are not principles of the ILO CLS (see also Doumbia-Henry & Gravel, 2006, pp. 196–197).
- 63.
The procedural guidelines as published in the United States Government (1994) Federal Register for the NAALC were revised in 2006 and extended to other agreements such as the US-Morocco FTA.
- 64.
The NAO is to take into consideration whether the submission raises issues relevant under the labor chapter of the US-Morocco FTA, whether a review would further the objectives of the US-Morocco FTA, and whether the submission clearly identifies the submitter, is signed and dated, and is sufficiently specific to determine the nature of the request for a review. Furthermore, it is to validate whether the statements constitute a failure of the other party to comply with its obligations under the US-Morocco FTA and demonstrate that appropriate relief has been sought under the domestic laws, whether the matter is pending before an international body, and whether additional information on a submission is substantially different from a previously filed submission (United States Government, 2006, p. 76695).
- 65.
In a side letter from US Trade Representative Robert B. Zoellick to the Minister Delegate for Foreign Affairs and Cooperation of Morocco Taïb Fassi Fihri (dated June 15, 2004), the parties confirmed, pursuant to Article 19.2, the establishment of the Subcommittee on Labor Affairs. It is to comprise officials of each party and be subject to the supervision of the Joint Committee, a committee comprising officials of each party and chaired by officials of the USTR and the Ministry of Foreign Affairs and Cooperation of the Kingdom of Morocco. The Subcommittee on Labor Affairs can utilize working groups, good offices, conciliation, mediation, or other means to resolve matters as required and as mutually agreed (Art. 19.2). The side letter is available on the USTR website at http://www.ustr.gov/sites/default/files/uploads/agreements/fta/morocco/asset_upload_file970_3857.pdf (accessed August 2014).
- 66.
In the USA, the NAO is to consult with the USTR, the USDOS, and other appropriate entities in the US Government before making such recommendations to bring the dispute to the dispute settlement mechanisms (United States Government, 2006, p. 76696).
- 67.
Each party can appoint one panelist in consultation with the other party and together they agree on a third panelist who serves as chair. If a party fails to appoint a panelist and the parties are unable to agree on the chair, the panelists and/or the chair are to be selected by lot from a reserve list of eight individuals which the parties are required to establish by the date of entry into force of the US-Morocco FTA (Arts 20.7.3–5; side letter between Minister Delegate for Foreign Affairs and Cooperation of Morocco and the United States Trade Representative, dated June 15, 2004).
- 68.
The rules of procedure include the right of at least one hearing before the panel that is open to the public, the opportunity for each party to provide submissions that are available to the public and comments, considerations of requests from non-governmental entities by the panel, and the protection of confidential information (Art. 20.8.1).
- 69.
The factors which influence the monetary assessment are defined as the bilateral trade effects of the party’s failure to enforce its labor law effectively; the pervasiveness, duration, and reasons for such a failure; the level of enforcement that could reasonably be expected of the party given its resource constraints; the efforts made by the party to begin remedying the non-enforcement after the final report of the panel; and any other factors that seem relevant (Art. 20.12.2).
- 70.
Along with cross-national dialog venues, pursuant to Article 16.4.2, the US-Morocco FTA allows the establishment of a national labor advisory committee, comprising members of its public to advise on the implementation of the labor chapter. As the focal point of this study is cross-national and not national labor dialog, the functioning of the national committee is not considered in this chapter.
- 71.
While non-discrimination is not specified in Article 16.8 of the CAFTA-DR, it is part of the Labor Cooperation Mechanism (see also Doumbia-Henry & Gravel, 2006, p. 196). The same holds true also for other provisions, such as those referring to migrant workers.
- 72.
Country Program Director Morocco, Solidarity Center AFL-CIO (personal interview, June 18, 2013); Trade and Globalization Policy Specialist, AFL-CIO (personal interview, June 14, 2013); see also the USDOL website at http://www.dol.gov/ilab/trade/agreements/fta-subs.htm (accessed November 2014).
- 73.
Information available on the USDOL website at http://www.dol.gov/ilab/trade/agreements/bahrainsub.htm (accessed November 2014).
- 74.
Official 1, OTLA, USDOL (personal interview, June 12, 2013); see also US 2012 Trade Policy Agenda and 2011 Annual Report (p. 128), available on the USTR website at https://ustr.gov/sites/default/files/Chapter%20III.%20Bilateral%20and%20Regional%20Negotiations%20and%20Agreements.pdf (accessed August 2014).
- 75.
Director, Labor Affairs, USTR (personal interview, June 10, 2013).
- 76.
Director, OTLA, USDOL (personal interview, June 12, 2013); see also the USDOL website at http://www.dol.gov/ilab/trade/agreements/FTAmeetings.htm (accessed August 2014).
- 77.
National Secretary of International Relations, Union Générale des Travailleurs du Maroc (UGTM) (personal interview, June 3, 2014).
- 78.
Director, Labor Affairs, USTR (2010); information available on the USTR website at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2010/may/ustr-dol-hold-inaugural-labor-sub-committee-meeting-mo (accessed November 2013).
- 79.
Director, Labor Affairs, USTR (personal interview, June 10, 2013); Official 1, OTLA, USDOL (personal interview, June 12, 2013); see also the USTR website at http://www.ustr.gov/about-us/press-office/press-releases/2010/may/ustr-dol-hold-inaugural-labor-sub-committee-meeting-mo (accessed November 2013).
- 80.
Official 1, OTLA, USDOL (personal interview, June 12, 2013).
- 81.
Information available on the USDOL websites athttp://www.dol.gov/opa/media/press/ilab/ILAB20131607.htm and http://www.dol.gov/opa/media/press/ilab/ILAB20132464.htm (accessed August 2014)
- 82.
Deputy Director, OTLA, USDOL (2010), information available on the USTR website at http://www.ustr.gov/about-us/press-office/press-releases/2010/may/ustr-dol-hold-inaugural-labor-sub-committee-meeting-mo (accessed November 2013).
- 83.
Official 1, OTLA, USDOL (personal communication, July 23, 2014).
- 84.
Director, Labor Affairs, USTR (personal interview, June 10, 2013); see also 2013 Trade Policy Agenda and 2012 Annual Report of the US President, available on the USTR website at http://www.ustr.gov/sites/default/files/Chapter%20III%20-%20Bilateral%20and%20Regional%20Negotiations%20and%20Agreements.pdf (accessed August 2014).
- 85.
Joint Statement of the US-Morocco Labor Subcommittee, available on the USTR website at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2014/September/Joint-Statement-Labor-Subcommittee-US-Morocco-Free-Trade-Agreement (accessed January 2015).
- 86.
Already in the negotiation process of the US-Morocco FTA, Moroccan authorities have sought assistance from their US counterparts in order to strengthen Morocco’s capacity to enforce its labor laws, ensure higher levels of compliance, and implement reforms of the Moroccan labor code. The US reacted with a US$3,1 million project aiming to achieve higher levels of labor law compliance in Morocco. Information available on the USDOL website at http://www.dol.gov/ilab/projects/summaries/morocco_otla.htm (accessed August 2014).
- 87.
According to the Associate Deputy Undersecretary of the ILAB, trade agreements constitute a key factor in priority-setting for funding for US labor cooperation. Therefore, significant funding of the USDOL ILAB has gone to Morocco, among other countries. Minutes of the National Advisory Committee meeting (March 23, 2012), available on the USDOL website at http://www.dol.gov/ilab/reports/pdf//NAC/20120323NAC-minutes.pdf (accessed October 2014).
- 88.
For a summary of the labor-related activities of the project see also the USDOL website at http://www.dol.gov/ilab/projects/summaries/Morocco_DIMAADROS_CLOSED.pdf (accessed August 2014).
- 89.
In general, the USA is an important donor to ILO technical assistance (Officer, Partnerships and Field Support Department, ILO, personal interview, April 21, 2011; Officer, Regional Office for Algeria, Libya, Morocco, and Tunisia, ILO, personal interview, November 7, 2013).
- 90.
Officer, Regional Office for Algeria, Libya, Morocco, and Tunisia, ILO (personal interview, November 7, 2013).
- 91.
See also the Creative Association International website at http://www.creativeassociatesinternational.com/at-a-glance/ (accessed October 2015).
- 92.
Information available on the USDOL website at https://www.dol.gov/ilab/projects/summaries/Morocco_Pathways.pdf (accessed October 2015).
- 93.
In particular for developing countries, it is not in their best interest to have several different agreements with developed countries (Official, Economic and Social Council (ECOSOC) Office, UN Department of Economic and Social Affairs, personal interview, May 4, 2012).
- 94.
US Trade Representative CAFTA-DR Facts of 2005, available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file546_7570.pdf (accessed September 2014).
- 95.
In detail, its aims are “to promote respect for worker rights and the rights of children consistent with core labor standards of the ILO…and an understanding of the relationship between trade and worker rights” (Trade Act of 2002, 19 U.S.C. § 3802(a)(6) (2006)). It covers the right of association, the right to organize and bargain collectively, a prohibition on the use of any form of forced or compulsory labor, a minimum age for the employment of children, and acceptable conditions of work with respect to minimum wage, hours of work, and occupational safety and health (3813 (6)).
- 96.
It is noteworthy, that the CLS and the “internationally recognized labor rights” correspond to a great extent. Nevertheless, there are a few exceptions where they diverge: The ILO CLS do not contain acceptable conditions of work with respect to minimum wage, hours of work and occupational safety and health which are principles of the “internationally recognized labor rights.” In contrast, the “internationally recognized labor rights” do not refer to non-discrimination provisions that are crucial parts of the CLS, namely the 1961 Equal Remuneration Convention (No. 100) and the 1958 Discrimination Convention (No. 111) (see also Doumbia-Henry & Gravel, 2006, pp. 196–197). It has been criticized that the recent FTAs negotiated by the USA such as the CAFTA-DR do not contain an enforceable commitment to respect the ILO CLS but limit themselves to enforce domestic labor laws (see also Alston, 2005, p. 471; Weiss, 2003, p. 697).
- 97.
The procedural guidelines as published in the United States Government (1994) Federal Register for the NAALC were revised in 2006 and extended to other agreements such as the CAFTA-DR.
- 98.
The NAO is to take into consideration whether the submission raises issues relevant under the labor chapter of the CAFTA-DR, whether a review would further the objectives of the CAFTA-DR, and whether the submission clearly identifies the submitter, is signed and dated, and is sufficiently specific to determine the nature of the request for a review. Moreover, it is to examine whether the statements constitute a failure of the other party to comply with its obligations under the CAFTA-DR and demonstrate that appropriate relief has been sought under the domestic laws, whether the matter is pending before an international body, and whether additional information on a submission is substantially different from a previously filed submission (United States Government, 2006, p. 76695).
- 99.
In the USA, the NAO is to consult with the USTR, the USDOS, and other appropriate entities in the US Government before making such recommendations to bring the dispute to the dispute settlement mechanism (United States Government, 2006, p. 76696).
- 100.
Each party can appoint one panelist and they agree on a third panelist as chair. If they fail to do so, the panelists are normally selected by lot from a labor roster of 28 individuals (Arts 16.7.1–3, 20.9.1).
- 101.
The rules of procedure include the right of at least one hearing before the panel that is open to the public, the opportunity for each party to provide written submissions or responses that are to be made public, considerations of request from non-governmental entities and arguments of the disputing parties, and the protection of confidential information (Art. 20.10.1).
- 102.
The factors which influence the monetary assessment are defined as the bilateral trade effects of the party’s failure to enforce the relevant law effectively; the pervasiveness, duration, and reason for such a failure; the level of enforcement that could reasonably be expected of the party given its resource restraints; the efforts made by the party to begin remedying the non-enforcement after the final report of the panel; and any other factors deemed relevant (Art. 20.17.2).
- 103.
Vice President and Former Minister of Labor, Dominican Republic (personal interview, April 25, 2012). In fact, a withdrawal of benefits might hurt a small or open economy more than a large or less open one (Polaski, 2004, p. 21).
- 104.
Along with cross-national dialog venues, pursuant to Article 16.4.4, the CAFTA-DR allows the establishment of a national labor advisory committee, comprising members of its public to advise on the implementation of the labor chapter. As the focal point of this study is cross-national and not national labor dialog, the functioning of the national committee is not considered in this chapter.
- 105.
While non-discrimination is not specified in Article 16.8 of the CAFTA-DR, it is part of the Labor Cooperation and Capacity Building Mechanism (Doumbia-Henry & Gravel, 2006, p. 196).
- 106.
The parties are to strive to ensure that the objectives and activities of the Labor Cooperation and Capacity Mechanism are consistent with each party’s national programs, development strategies, and priorities, provide opportunities for public participation in the development and implementation of objectives and activities, and take into account each party’s economy, culture, and legal system (Art. 16.5.2).
- 107.
The submissions were filed by the AFL-CIO and a group of six Guatemalan trade unions and by the AFL-CIO and 27 Honduran federations, trade unions, and civil society organizations, respectively. Information available on the USDOL websites at http://www.dol.gov/ilab/trade/agreements/guatemalasub.htm and http://www.dol.gov/ilab/trade/agreements/fta-subs.htm (accessed August 2014).
- 108.
Christopher Hartley, Founder and President, Clarkson-Montesinos Institute (personal interview, April 11, 2013).
- 109.
Christopher Hartley, Founder and President, Clarkson-Montesinos Institute (personal interview, April 11, 2013).
- 110.
Christopher Hartley, Founder and President, Clarkson-Montesinos Institute (personal interview, April 11, 2013).
- 111.
Father Hartley did not work with the Dominican Labor Department which is – according to the submitter – itself afraid of the three main sugar companies he accused of illicit labor practices (Christopher Hartley, Founder and President, Clarkson-Montesinos Institute, personal interview, April 11, 2013).
- 112.
Trade and Globalization Policy Specialist, AFL-CIO (personal interview, June 14, 2013).
- 113.
The submission is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/DRSubmission2011.pdf (accessed August 2014).
- 114.
See also the USDOL website at http://www.dol.gov/ilab/reports/pdf/20130926DR.pdf (accessed August 2014).
- 115.
Director, OTLA, USDOL (personal interview, May 14, 2012); see also the 2013 US Public Report of Review, available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/20130926DR.pdf (accessed October 2014).
- 116.
Letter by the Director, OTLA, USDOL to Father Hartley (dated March 22, 2013) (Christopher Hartley, Founder and President, Clarkson-Montesinos Institute, personal communication, April 21, 2013).
- 117.
Associate Deputy Undersecretary, ILAB (2012), cited in minutes of the US National Advisory Committee meeting (September 27, 2012), available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/NAC/20120927NAC-minutes.pdf (accessed October 2014).
- 118.
Letter by the Director, OTLA, USDOL to Father Hartley (dated March 22, 2013) (Christopher Hartley, Founder and President, Clarkson-Montesinos Institute, personal communication, April 21, 2013).
- 119.
Information available on the USDOL website at http://www.dol.gov/opa/media/press/ilab/ILAB20131979.htm (accessed August 2014).
- 120.
2011 US Public Report of Review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/20130926DR.pdf (accessed August 2014).
- 121.
2011 US Public Report of Review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/20130926DR.pdf (accessed August 2014).
- 122.
US six-month review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/Six%20month%20assessment.pdf (accessed August 2014).
- 123.
US twelve-month review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/20141017-DomRepub12MonthStatement.pdf (accessed November 2014).
- 124.
US eighteen-month review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/Dominican%20Republic%2018-month%20review%20statement.pdf (accessed March 2016).
- 125.
US twenty-four-month review is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/Dominican%20Republic%2024-month%20review%20statement.pdf (accessed March 2016).
- 126.
Moreover, to improve coordination of technical assistance and capacity building, the labor ministers have had regularly scheduled meetings and have adopted action plans in the past to concentrate their efforts, including the Santo Domingo Declaration of 2002. Information available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file300_13205.pdf (accessed August 2014).
- 127.
As an illustration, in July 2004, the ILO, the World Bank, the UN Economic Commission for Latin America and the Caribbean, and the Organization of American States participated in a meeting under the sponsorship of the Inter-American Development Bank. Information available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file300_13205.pdf (accessed September 2014).
- 128.
Director, OTLA, USDOL (personal interview, June 12, 2013); see also United States Government (2011, p. 20713), available on the US website at http://www.gpo.gov/fdsys/pkg/FR-2011-04-13/pdf/2011-8971.pdf (accessed September 2014); United States Department of Labor (2015, p. 10); and the USDOL website at www.dol.gov/ilab/highlights/if-20081121.htm (accessed January 2014).
- 129.
Information available on the USDOL website at www.dol.gov/ilag/highlights/if-20081121.htm (accessed January 2013).
- 130.
Joint Statement (dated November 21, 2008); Director, OTLA, USDOL (personal communication, July 22, 2014); information available on the USDOL website at www.dol.gov/ilab/highlights/if-20081121.htm (accessed January 2013).
- 131.
Official 1, OTLA, USDOL (personal interview, June 12, 2013).
- 132.
Director, Labor Affairs, USTR (personal interview, June 10, 2013); Director, OTLA, USDOL (personal interview, June 12, 2013); Official 1, OTLA, USDOL (personal interview, June 12, 2013); see also United States Department of Labor (2012, pp. 12–13).
- 133.
Director, Labor Affairs, USTR (personal interview, June 10, 2013); Director, OTLA, USDOL (personal interview, June 12, 2013); Official 1, OTLA, USDOL (personal interview, June 12, 2013); see also United States Department of Labor (2012, p. 12).
- 134.
Senior Fellow, Center for Global Development and US National Advisory Committee Member (personal interview, June 11, 2013); see also Hornbeck (2004, pp. 19–20).
- 135.
Senior Fellow, Center for Global Development and US National Advisory Committee Member (personal interview, June 11, 2013).
- 136.
Information available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file739_13204.pdf (accessed October 2014); see also Bourgeois, Dawar, and Evenett (2007, p. 34) and Doumbia-Henry and Gravel (2006, p. 195).
- 137.
Information available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file80_7841.pdf (accessed October 2014.).
- 138.
Elliott (2004, p. 7), for instance, observes that the budget generally decreased under the Bush Administration in contrast to the Clinton Administration.
- 139.
Information available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file300_13205.pdf (accessed August 2014).
- 140.
Chief, Monitoring and Enforcement of Trade Agreements Division, OTLA, USDOL (personal interview, June 12, 2013); Director General, Foreign Trade and Administration of Trade Agreements, Dominican Ministry of Industry and Trade (Ministerio de Industria y Comercio de la República Dominicana) (personal interview, May 25, 2012); Director, International Relations, Dominican Ministry of Labor (Ministerio de Trabajo de la República Dominicana) (personal interview, April 27, 2012); Regional Program Director Americas, Solidarity Center AFL-CIO (personal interview, May 7, 2013); Official, Foreign Trade and Administration of Trade Agreements, Dominican Ministry of Industry and Trade (personal interview, May 25, 2012); President, Consejo Nacional de Unidad Sindical (CNUS) (personal interview, June 2, 2014); see also International Labor Organization (2013, p. 80).
- 141.
While the priorities under the areas two, three, four, and six received funding through an interagency process of the US Government, consisting of the USDOL, the US Agency for International Development (USAID), and the Bureau of Democracy, Human Rights, and Labor of the USDOS, labor law priorities under the first area did not receive funding as the labor laws are seen as honoring the fundamental ILO commitments. Child labor priorities under the fifth area were financed by an independent budget for child labor and human trafficking issues of the USDOL (United States Department of Labor, 2012, pp. 15–16, 2015, pp. 11–12).
- 142.
See also the Catholic Relief Service website at http://www.crs.org/our-work-overseas/where-we-work/dominican-republic (assessed January 2015).
- 143.
See also the Catholic Relief Service website at http://en.jrs.net/news_detail?TN=news-20131025054138 (accessed January 2015).
- 144.
Information available on the USDOL website at http://www.dol.gov/ilab/projects/summaries/Central_America_Worker_Rights.pdf (accessed September 2014). On a midterm evaluation of the project conducted by the ICF Macro, an American consulting firm, see the USDOL website at http://www.dol.gov/ilab/projects/summaries/Central_America_Worker_Rights_Centers_meval.pdf (accessed September 2014).
- 145.
See also the Trust for the Americas website at http://trustfortheamericas.org/ (accessed September 2014).
- 146.
In order to monitor the improvements made by the CAFTA-DR Governments, the USA allocated US$3 million of each year’s White Paper’s funds between 2005 and 2009 to the ILO for benchmarking and verification of the countries’ actions. Information available on the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file33_13203.pdf (accessed August 2014).
- 147.
Director General, External Trade and Administration of Trade Agreements, Dominican Ministry of Industry and Trade (personal interview, May 25, 2012); Director, Labor Affairs, USTR (personal interview, June 10, 2013). In fact, trade agreements constitute a key factor in priority-setting for funding for US labor cooperation. Therefore, significant funding of the ILAB of the USDOL has gone to the CAFTA-DR countries, among other countries. Minutes of the US National Advisory Committee meeting (March 23, 2012), available on the USDOL website at http://www.dol.gov/ilab/reports/pdf//NAC/20120323NAC-minutes.pdf (accessed October 2014).
- 148.
The study is available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/2012ConstructionDR.pdf (accessed September 2014).
- 149.
Chief, Monitoring and Enforcement of Trade Agreements Division, OTLA, USDOL (personal interview, June, 12, 2013); Project Manager Dominican Republic, OCFT, USDOL (personal interview, June 12, 2013); Secretary General, Confederación Autonóma Sindical Clasista (CASC) (personal interview, June 5, 2014); see also the USDOL website at http://www.dol.gov/opa/media/press/ilab/ILAB20131979.htm (accessed September 2014).
- 150.
Chief, Monitoring and Enforcement of Trade Agreements Division, OTLA, USDOL (personal interview, June 12, 2013); Project Manager Dominican Republic, OCFT, USDOL (personal interview, June 12, 2013); see also the USDOL website at http://www.dol.gov/ilab/projects/summaries/2013DR-agriculture.pdf (accessed September 2014).
- 151.
In essence, labor and enforcement provisions in US trade agreements can, according to Bolle (2008, 2015), be categorized into four different models: While the NAALC constitutes model one and the US-Jordan FTA model two, model three includes seven trade agreements covering 12 countries, namely Chile, Singapore, Australia, Morocco, Bahrain, Oman, and the six CAFTA-DR countries. Model four, finally, consists of recent agreements concluded with Peru, Colombia, Panama, and South Korea.
- 152.
Director, OTLA, USDOL (personal interview, May 14, 2012).
- 153.
For a comparison of the labor aspects of the CAFTA-DR, the US-Morocco FTA, and the US-Jordan FTA, see also the USTR website at http://www.ustr.gov/archive/assets/Trade_Agreements/Regional/CAFTA/Briefing_Book/asset_upload_file290_7192.pdf (accessed October 2014). In comparing the US-Morocco FTA with the US-Jordan FTA, it has been argued that the former represents a step backwards from the latter as the enforcement procedure only refers to violations of domestic labor laws (e.g., Doumbia-Henry & Gravel, 2006, p. 192).
- 154.
Minutes of the US National Advisory Committee meeting (September 27, 2012), available on the USDOL website at http://www.dol.gov/ilab/reports/pdf/NAC/20120927NAC-minutes.pdf (accessed October 2014).
- 155.
This also becomes evident with regard to the money spent for labor-related projects in the context of the CAFTA-DR in comparison to the budgets provided for such projects under other US agreements (International Labor Organization, 2013, p. 83).
- 156.
The enforcement plan is available on the USDOL website at http://www.dol.gov/ilab/programs/otla/0413GuatEnforcementPlan.pdf (accessed November 2014).
- 157.
US Trade Representative (September 2014), information available on the USTR website at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2014/September/United-States-Proceeds-with-Labor-Enforcement-Case-Against-Guatemala (accessed November 2014).
- 158.
Senior Fellow, Center for Global Development and US National Advisory Committee Member (personal interview, June 11, 2013).
- 159.
Associate Deputy Undersecretary, ILAB (2012), as cited in the minutes of the US National Advisory Committee meeting (March 23, 2012), available on the USDOL website at http://www.dol.gov/ilab/reports/pdf//NAC/20120323NAC-minutes.pdf (accessed October 2014).
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Oehri, M. (2017). US External Labor Governance: Imposing Sanctions or Providing Assistance?. In: US and EU External Labor Governance. The European Union in International Affairs. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-49301-5_2
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