1. The Issue
Late in 2000, an historic Free Trade Agreement (FTA) between the United States and the Hashemite Kingdom of Jordan was signed which was meant to eliminate duties and commercial barriers to bilateral trade in goods and services originating in the United States and Jordan. In addition, this is just the fourth free trade agreement the United States has negotiated (after those with Canada and Mexico (NAFTA), and Israel), and the first ever with an Arab state. But more importantly (for what this paper is interested in), this is also the first US free trade agreement to include explicit provisions for labor, whereby the specific relationship between trade and labor is addressed. In the body of the agreement itself, it is stipulated that each country will enforce its own labor laws and not lower labor standards to promote trade, and each side has agreed to settle disagreements on trade-related labor law enforcement through a dispute settlement process. The possibility of this agreement being used as a precedent setting document for the interests of organized labor is a quite strong, and one that should be examined in light of the upcoming FTAA negotiations.
2. Description
Since the United States-Jordan Free Trade Agreement was achieved bilaterally and in an environment that was relatively tolerant of organized labor practices and worker’s rights (Jordan, and the United States to an extent), this was an exceptional achievement and one supported by the labor movements of both countries. The most important thing about the United States-Jordan Free Trade Agreement is that the labor provisions are included in the basic agreement itself, and not as a side agreement (which has comparatively little clout outside of the main document). What I am examining is exactly how such provisions might be used to help set a precedent for future free trade agreements, specifically the negotiations over the FTAA treaty and to what extent similar labor provisions might be included. Given that it is still the early stages of the FTAA treaty negotiations, it would seem that some sort of momentum could be developed in formulating a set of labor provisions which could be included in the final draft.
At present, the FTAA treaty does not include even the minimal workers’ rights protections found in NAFTA's Labor Side Agreement. That agreement (NAFTA) includes 11 "labor principles" such as freedom of association, freedom from discrimination and a minimum wage. Therefore the clear and concrete provisions in the United States-Jordan Free Trade Agreement are something to strive for in terms of bringing such provisions to a much larger and comprehensive agreement like the FTAA, where millions of workers will ultimately be affected. AFL-CIO President John Sweeney called the U.S.-Jordan Agreement "a small step toward our ultimate goal of making workers' rights and environmental protections an integral part of universally applied trade rules" (from CNN.com: U.S., Jordan link trade and peace with new agreement). If multinational trade agreements are to continue to be formulated from above- by the ruling institutions and corporate interests which have absolutely the most to gain from such endeavors, it is imperative that the interests of labor are fully represented in the basic texts of the documents. The precedent for such labor-specific inclusions is embodied in the United States-Jordan Free Trade Agreement, and as such it can possibly be use as a model in the negotiations for the FTAA by which the interests of labor can pursue a final draft more inclusive and representative of the workers who will ultimately be affected.
3. Related Cases
Since the labor side agreements in the NAFTA treaty set a precedent for keeping labor provisions out of the main bodies of international trade agreements (and thus rendering them "toothless" in terms of addressing labor grievances), the weakness of the NAFTA treaty itself will be a core area to focus on when trying to ascertain the benefits of the US-Jordan Treaty (which had labor provisions in the main body of the agreement, which makes them much more enforceable). In addition, when considering that the current FTAA negotiations are underway, the analysis of both of these earlier treaties and the actions taken from labor within the framework of each agreement will be important to consider.
The core agent within this analysis is that of the labor union- the principal force by which labor organizes and seeks to collectively address the problems and grievances which arise within the broader context of international trade. Labor unions carefully follow the provisions within these broad reaching international agreements, and as such it is during the negotiation process (as with the FTAA) that these organizations have the best chance to win provisions for workers
While there are numerous TED cases which relate distantly to what I am trying to discuss, there are perhaps two very important cases which might provide the most help. First of all, out of the sixteen available cases relating to "NAFTA," there are three which possibly relate to what I am looking to discuss, "NAFTA, "BIGMAC, and "PICKER." Out of these three, "NAFTA," while certainly focusing on the nuts and bolts of the document, does not get too much into the specifics of the treaty’s labor side agreements. Therefore "BIGMAC, and "PICKER" are the most helpful and relevant to the particular areas of the treaty which I am seeking to deconstruct.
The search results for "Labor Unions" yielded some interesting results, especially the case entitled "ORANGE," involving the Teamsters and Brazilian apple growers, however none of the cases related specifically to any international trade agreement.
Ultimately, both "BIGMAC" and "PICKER" should provide the most helpful data and references, especially in allowing me to put concrete references in my work as to exactly how and where the infamous "labor side agreement" has failed workers under NAFTA. In both cases, the options available to seek the redress of grievances (the right to organize and bargain collectively in the case of the Quebec McDonald’s, and ability to also organize the immigrant apple pickers of Washington State) both failed to help the workers at all under the available options of the NAFTA’s weak labor side agreements.
4. Author and Date:
Jason Netherton/November 2001
5. Discourse and Status: Agreement and Complete
Part of the inherent problem in negotiating a trade agreement with labor provisions (clearly embedded in the main text of the actual document itself) is that there is no fundamental precedent for such inclusion. Such is the wonder of the United States-Jordan Free Trade Agreement, and precisely why it should be cited as a significant achievement (as relatively minor as it may seem in the greater affairs of global trade), and used as a basis for arguing the need for labor provisions in the current negotiations surrounding the Free Trade Area of the Americas. In the legal context of such an agreement, the United States-Jordan Free Trade Agreement holds each nation bound to concrete labor standards and dispute resolution mechanisms under international law, and provides no vague or equivocal language which might allow for the evasion of the principles contained therein (as with the labor side agreement of NAFTA).*
*Full text of the NAALC available here
6. Forum and Scope:
Looking further across the board to compare this with other institutional doctrines, the WTO and other international trade bodies have their own significant lapses in acknowledging labor and giving it a place in the context of a legal foundation. In the face of accelerated globalization, it can simply be seen that there is a large vacuum of any distinctive legal component regarding labor standards aside from hollow and toothless declarations and conventions of some organizations which read very nicely, but enforce weakly (if at all) (see The North American Free Trade Agreement and Labor Rights @ http://www.wtowatch.org/library/admin/uploadedfiles/North_American_Free_Trade_Agreement_and_Labor_.htm)
The World Trade Organization has absolutely no mechanisms with which to handle labor, and traditionally has left the codification of such standards up to the International Labor Organization (ILO). In recent years, the ILO and the WTO have debated among each other just exactly how and where trade policy would intersect with labor standards and rights, and the extent to which the ILO itself should protect and promote core labor standards. This debate has somewhat split the developing and developed nations, with both sides offering firm justification for their position.
Developed countries claim that there is a definite link to trade and labor standards and as such, argue that the forum where this connection should be dealt with is the WTO. On the other hand developing countries argue that the inclusion of such standards would result in the rise of protectionist policies detrimental to trade overall. Meanwhile, the ILO has just concentrated on promoting awareness of its labor conventions, and the importance of promoting core labor standards, rather than seeking to have sanctions included in free trade agreements (or in the doctrines of trade organizations like the WTO).
7. Decision Breadth: WTO Total = 147
Across member nations, any decision on the trade-labor link has hung somewhat in legal limbo as neither institution has sought to tackle the issue on its own, and no nation other than the United States and a few European countries has taken the initiative to introduce labor standards into the machinations of the WTO. So far the only thing introduced has been the offer made at the 1999 Seattle meeting, where the United States proposed the development of a "working party" that would examine the relationship between trade and core labor standards, and the EU proposed a "Standing Working Forum on Trade, Globalization and Labor Issues," that some might see as a beginning, and others might see as an unnecessary diversion. (Of which both ended up as hollow offers see the ILO WATCH at http://us.ilo.org/news/ilowatch/9911.html)
8. Legal Standing:
Ultimately, developing countries see any move towards the possibility of broad reaching links between trade and labor standards as inherently detrimental to their comparative advantage, and see low labor costs (for producers) as essential to their export sector health. This dilemma is perhaps part of the larger problem of trying to forward a specific type of globalization under the neo-liberal economic model, while trying to balance the social and human costs that such unfettered capitalism has on the populations of the world. The legal vacuum in this regard perhaps might eventually be dispelled through the continued work of the ILO and its organizing bodies, however, it is the trade organizations and trade agreements themselves which perhaps need to be strengthened- both those already in place, and perhaps even more importantly those such as the FTAA which are being negotiated now. The success of the United States-Jordan Free Trade Agreement proves that this is a possibility if nothing else, and that work should continue towards the establishment of concrete, enforceable labor standards in all agreements.
9. Geographic Locations
a. Geographic Domain: Middle East
b. Geographic Site: Asia, Middle East
c. Geographic Impact: Jordan
10. Sub-National Factors
11. Type of Habitat
12. Type of Measure: Regulatory Standard
For the most part, it is not the quantity or volume of trade which makes this case so interesting and relevant to the wider spectrum of international trade, nor is it a specific item or commodity which is being traded that is important. It is the text of the actual agreement itself, and its relevance to international labor standards which is being examined here. With that in mind, it is nonetheless important to take a look at the makeup of each nation’s output and input, so as to assess the relative importance of such a bilateral trade agreement to a larger multinational agreement such as the FTAA. Since this report is not dealing with a specific product, the general statistics for all trade sectors combined will be outlined.
13. Direct vs. Indirect Impacts: Direct
14. Relation of Trade Measure to Environmental Impact
a. Directly Related to Product: No
b. Indirectly Related to Product: Yes, many
c. Not Related to Product: No
d. Related to Process: Yes, many
15. Trade Product Identification: Many
16. Economic Data
1. Bilateral Trade With the United States.
Jordan ranks 98th on a list of 230 nations and trading partners in terms of actual volume transactions. (source: United States International Trade Commission Interactive Trade and Tariff Dataweb @ http://dataweb.usitc.gov/)
|
US Partner country |
Imports for Consumption from: |
Domestic Exports to: |
Merchandise Trade Balance: |
|
Jordan |
$72.8 million |
$305.6 million |
$232.8 million |
2. Relevant Trade Measures.
The United States-Jordan Free Trade Agreement has a multitude of trade measures, totaling about 800 pages. The PDF document is located at: http://www.jordanembassyus.org/commercial/fta/annex2_1.pdf (the Jordan Commercial Center, Washington DC). The document consists of nineteen articles (19) which cover a vast number of concerned areas, including trade in goods and services, intellectual property rights, labor, the environment, electronic commerce, and dispute settlement mechanisms.
3. The United States: Top 10 Export destinatons and import origins
United States:
|
Partner country |
Imports for Consumption (millions) |
Domestic Exports (millions) |
Merchandise Trade Balance (millions) |
|
|
1 |
Canada |
$229,059.9 |
$155,600.8 |
($73,459.1) |
|
2 |
Mexico |
$134,734.4 |
$100,442.1 |
($34,292.3) |
|
3 |
Japan |
$145,741.9 |
$60,751.0 |
($84,990.8) |
|
4 |
China |
$99,580.5 |
$15,335.3 |
($84,245.2) |
|
5 |
Germany |
$58,349.1 |
$27,402.9 |
($30,946.1) |
|
6 |
United Kingdom |
$42,842.8 |
$38,147.6 |
($4,695.2) |
|
7 |
Korea |
$39,828.9 |
$26,302.4 |
($13,526.5) |
|
8 |
Taiwan |
$40,383.7 |
$22,403.7 |
($17,980.0) |
|
9 |
France |
$29,434.7 |
$18,920.8 |
($10,513.9) |
|
10 |
Malaysia |
$25,447.5 |
$10,122.8 |
($15,324.6) |
(source: United States International Trade Commission Interactive Trade and Tariff Dataweb @ http://dataweb.usitc.gov/)
17. Impact of Trade Restriction: Low
18. Industry Sector: Many
19. Exporters and Importers: In terms of the Jordan-America Free Trade Agreement, the scope is limited to the United States and Jordan, under the FTAA this could have a potential impact on all the nations of the Western Hemisphere with the exception of Cuba
20. Environmental Problem Type:
The "environment" here is defined loosely as the working social conditions which ultimately comprise the human landscape of any free trade agreement, and the workers whose lives are affected are therefore the individuals who either benefit or lose from whatever politically constructed rules are agreed upon. When analyzing the usefulness and/or benefits of the Jordan-America Free Trade Agreement in a comparative perspective, the obvious precursor to the agreement is the NAFTA treaty, or more specifically, the labor provisions constructed as a side agreement to the treaty known as the North American Agreement on Labor Cooperation (NAALC). These provisions, at the time, were the most ambitious link yet between trade and labor rights ever implemented, and as such provide a good barometer as to how well they may have lived up to helping workers rights under the NAFTA agreement during the past seven years the treaty has been in effect. The most comprehensive study undertaken on the matter has been a report from the non-profit organization known as Human Rights Watch, which released a study in 2001 on the record of the NAALC along with an examination of all the grievances which were brought up under the agreement since it was instituted (see supplementary table at bottom). By looking at the record of this previous, somewhat toothless, side agreement to NAFTA, a template can be developed as to where to begin work on a better and more effective agreement for the current FTAA negotiations, in addition to using the Jordan-America Free Trade Agreement’ s unprecedented main-body labor agreements as a minimum standard to strive for.
An important case which highlights the inability of the NAALC, and its constituent "oversight" bodies to perform any useful task in helping individual workers realize their rights under the agreement’s loosely define codes of conduct, is the case of the Duro Bag Manufacturing Company in Mexico, which is most likely going to be the newest case brought up before the NAALC, and the twenty-fourth overall. The workers at this Maquiladora operated factory are accusing Mexico of failing to enforce its own domestic labor laws, and the complaints and words of former factory wage-slave Victoria Pacheco, who according to this report from BORDERLINES (the following information was extracted from Borderlines 80 Volume 9 Number 7, August 2001) says she:
… worked on the Duro assembly line for 10 years…she says low wages and poor working conditions convinced her to join others in the plant who thought they should form an independent union. Pacheco began making paper bags at the Duro maquiladora at the age of 17 and, with the exception of a few months, stayed on until a year ago. To earn extra money, she worked overtime and on weekends. Yet her take-home pay was never more than $80 per week, she says. "They walked all over us. I didn't know my rights," Pacheco states. She recalls that once she had to work with a 104-degree fever, and that her supervisor would not allow her to leave because two other workers had already gone home sick that day. Pacheco says that employees were not given work boots, that she saw fellow employees lose fingers in machines, and that there was often a strong odor in the plant from glues and solvents. She claims that even basic safety devices, such as masks, were not provided. She also complains about the lack of air conditioning in the plant, because temperatures there can reach more than 100 degrees on some days. She remembers how 12 women on an assembly line had one inadequate fan that did not provide ventilation to those at the back of the line. She says the women rotated positions, so they could take turns cooling off as they worked. Even the little things were inadequate at the plant, according to Pacheco. "Our bathrooms were often flooded and dirty. The cafeteria was extremely bad."
Such circumstances caused the workers at the plant to go on strike in June of 2000 to support a new independent union, which caused her and other workers to lose their jobs because they did not give the company "advance notice" of their intentions. Undeterred, Pacheco and others sought to continued the union drive at the plant, even under numerous cases of heavy and illegal harassment. On the actual day of the long awaited plant vote for the union, there was even more intense intimidation and disruption from anti-union thugs and a forced public-voting process that required workers to sign their names in front of management and corporate union lackeys. Needless to say, the vote failed the new independent union miserably.
However, Pacheco and others are still claiming that the election was a farce, and a new one is needed- and as such they have taken the only legal route available, the use of the weak and nearly pointless text known as the NAALC, in the hopes of making some gains. Experiences with the process have proven that they can expect little or nothing from their complaint under this NAFTA orchestrated, and horrifically hollow document.
In the larger context, many groups become entirely subject to the arbitrary decisions of supposed "oversight bodies" which have no real impact or ability to affect the appeals which are brought before it. What the NAALC lacks most specifically is that it has no formal appeals process, lacks no independent oversight body, and fails to address (as stipulated in the agreement) even the most fundamental labor rights- freedom of association and the right to organize, the right to bargain collectively, and the right to strike. A primary example of this is the Pregnancy Testing Case (U.S. NAO Case No. 9701-one of only twenty three submitted since the treaty was ratified by member states)(Human Rights Watch:http://www.hrw.org/reports/2001/nafta/nafta0401-05.htm)
This case stems from a 1997 Human Rights Watch submitted complaint (also signing on were the International Labor Rights Fund and the Mexican National Association of Democratic Lawyers) over the lack of any response from the Mexican government to the problem of pregnancy-based discrimination in the notorious maquiladora factories based in the border regions of Mexico. It was stated in the complaint that women in the factories had to undergo pregnancy tests in order to obtain employment at one of the work facilities, so as to effectively discount or exclude those women who might then be able to claim maternity benefits if they were ultimately hired. Additionally, it was noted that the Mexican government failed to meet the NAALC article 4 requirement, which would allow such victimized women to seek redress through a council or hearing, but even such minimal action failed to materialize. In the end, the National Administrative Office (NAO- the body which is designed in each member country to address instances of non-compliance, and which also has no guiding principles other than to investigate), simply criticized the activities taking place at the factories, and ultimately fell short of condemning the habits altogether, and only resulted in the practice continuing under objection of the parties concerned. This case highlights the overall weakness of the labor side agreement and its inability to provide any real, concrete outlet for sanctions in the event of the violation of the labor codes and standards which are so "generously" included in the side agreement. Therefore it can be seen that the agreements are only as effective to the extent that they provide an outlet for enforcement encoded into the body of the agreement itself (as with the Jordan-America Free Trade Agreement- which is yet to be fully tested).
21. Name, Type, and Diversity of Species
22. Resource Impact and Effect: Low and Regulatory
23. Urgency and Lifetime: Low and 5-10 years
24. Substitutes:N/A
25. Culture: NO (However, the impact on culture might be more noticeable in the future, especially for Jordan. Aside from the obvious issue involving the influx of a greater number of products and goods from the United States which may be culturally loaded with the values of the West, the ability of labor unions in Jordan to exercise their rights in terms of the labor provisions of the agreement will ultimately determine the nature of domestic and labor peace, as well as the ability for free trade to be exercised unhindered from domestic disputes and disagreements.
26. Trans-Boundary Issues: NO (However, the neighboring states of Jordan have a volatile and uncertain history, which might also be an additional external factor for the ability of free trade to take place unhindered)
27. Rights: YES (Labor rights are central to the agreement, and as such have been shown here to be critical to the outcome of the agreement's success or failure)
28. Relevant Literature
Appendix:
I. Signs of Hope: International Labor-Related Legal Decisions
(source: Foreign Policy In Focus Volume 2, Number 15 January 1997)
II. NAALC Case Statistics
|
Total cases filed by nongovernmental and business groups |
23 |
|
Duplicate filings |
2 |
|
Cases initiated by the signatories |
0 |
|
Cases rejected by NAOs |
4 |
|
Cases withdrawn by petitioners |
3 |
|
Cases c |