What is it about?
U.S. free trade agreements have included labor clauses since the 1994 NAFTA, but do they actually work? This commentary examines the first international arbitration decision in which the U.S. charged Guatemala for not effectively enforcing its labor laws under the U.S.-Central America-Dominican Republic Free Trade Agreement (CAFTA-DR). Although the U.S. lost to Guatemala, the decision provides important guidance on what must be proven to prevail in future cases and on the meaning of effective enforcement of labor law under CAFTA-DR and other U.S. free trade agreements.
Featured Image
Photo by Arturo Rivera on Unsplash
Why is it important?
This commentary distills the main points of the 200-page arbitration decision, discussing each element of proof that must be made under CAFTA-DR's labor clause to demonstrate that a country has not effectively enforced its labor laws in a manner affecting trade. The commentary zeros in on the key issue of the difficulty of assessing and submitting evidence from workers and trade unions in an international trade proceeding. Critically, the commentary is accompanied by an abridged version of the arbitration decision consisting of 16 pages of the key paragraphs in the decision.
Perspectives
This commentary places the CAFTA-DR labor arbitration case in a continuum of cases rather than focusing on the decision as a single, devastating loss that calls into question the enterprise of including and enforcing labor clauses in free trade agreements. Every important legal advocacy effort in the pursuit of social justice - whether defending early challenges to the constitutionality of minimum wage and child labor laws or challenging racial school segregation in the U.S. Supreme Court case Brown v. Board of Education - has started with missteps, misfires, and losses. The CAFTA-DR Guatemala labor arbitration decision of 2017 is no exception. Progress will not and cannot be made without the learning and tough experiences of early misfires and losses.
Tequila Brooks
Read the Original
This page is a summary of: U.S.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement, International Labor Rights Case Law, March 2018, Brill,
DOI: 10.1163/24056901-00401007.
You can read the full text:
Resources
Arbitral Panel Established Pursuant to Chapter Twenty of the Dominican Republic – Central America – United States Free Trade Agreement, 14 June 2017
Abridged version of arbitration in U.S.-Guatemala CAFTA-DR labor decision. Distills 200-page decision to 16 pages of key paragraphs.
Undefined Rights: The Challenge of Using Evolving Labor Standards in U.S. and Canadian Free Trade Agreements to Improve Working Women’s Lives
This article in the Comparative Labor Law and Policy Journal compares labor provisions in US and Canadian free trade agreements, discusses the positive development of US practice in application of labor provisions in US free trade agreements, and analyzes the potential to use these provisions to improve working women's rights given shortcomings in the provisions' definitions sections.
Sexism and Gender Stereotyping in International Guest Worker Programs: An Analysis of Two 2016 Petitions Filed Under the North American Agreement on Labor Cooperation
This article in the Employee Rights and Employment Policy Journal discusses two innovative petitions filed under NAFTA's labor side agreement that argue that there is direct discrimination based on sex in recruitment for agricultural guest worker programs in the US and Canada. The article shows that that this sexism is part of a larger global pattern in recruitment for guest worker programs, denying women access to economic opportunity and placing them at greater risk for human trafficking.
Contributors
The following have contributed to this page
