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A Way Forward

To ensure that the intent of Rep. Levin and other congressional leaders is reflected in pending and future free trade accords, it is important that the uncertainties and ambiguities in the template be resolved with clear trade agreement language that captures the template’s full potential for protecting workers’ rights. Human Rights Watch, therefore, recommends that:

1) Countries be required to adopt, maintain, and enforce in their own laws and in practice the five basic internationally-recognized labor rights, listed in the ILO Declaration, and “expressed and developed . . . in Conventions recognized as fundamental both inside and outside the [International Labour] Organization”;²⁵ and

2) No limiting language be included regarding the interpretation of these basic rights and, to the contrary, additional language be considered clarifying that these rights are defined by the eight ILO fundamental conventions and related ILO jurisprudence.²⁶

This language would use the ILO Declaration as a reference point for identifying a list of internationally-recognized fundamental rights with clear, well-articulated substance.  This approach would also avoid importing into US trade accords the ambiguity of the ILO Declaration as a legal instrument, discussed above.

One potential criticism of the approach Human Rights Watch recommends might be that it would impose on all parties to US free trade accords the same obligations they would assume if they ratified all eight fundamental ILO conventions.²⁷ This is not the case.

When countries ratify conventions, they are duty-bound to amend their national laws to comply and to ensure that those laws are effectively enforced, regardless of the labor sector, regardless of the circumstances. In the case of the ILO fundamental conventions, parties also commit to submit to the jurisdiction and annual reporting mechanism of the ILO Committee of Experts. 

In stark contrast, the proposed free trade agreement language would provide only that, if a country’s labor laws or practice failed to protect the fundamental rights listed in the ILO Declaration through a “sustained or recurring course of action or inaction” in a “manner affecting trade or investment between the parties,” another party to the accord could lodge a complaint. This complaint, if not resolved amicably, could be heard by an arbitral panel of independent experts, which could rule that an agreement violation had occurred, at which point the violating country would be free to determine how to respond.  The country could remedy the problem, through legislative or other means, or could choose to remain in noncompliance, deciding instead to pay an annual fine or enjoy fewer trade accord benefits rather than fix the violation. 

The proposed language would serve as a lever to induce greater respect for workers’  basic rights but would not impose on countries the same panoply of legal obligations they would face if they were parties to the ILO conventions.

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