II. FINDINGS AND RECOMMENDATIONS

General Findings and Recommendations

To Make the Existing NAALC More Effective

1) The NAOs and labor ministries have used their authority under the NAALC timidly; they have not effectively addressed or pursued solutions to issues identified by petitioners using the accord.

Recommendation: In their case reports, the NAOs should address each and every issue raised by petitioners, expressly accepting or rejecting their contentions with detailed analyses. The NAOs should include explicit topics for resolution in their recommendations for ministerial consultations, and the labor ministries should carefully address each issue with programs designed to resolve the problems identified.

2) The NAALC's potential to serve as a mechanism for the parties to promote broad improvement in the labor rights situation in their respective countries remains unfulfilled.

Recommendation: The NAOs should seek opportunities to address broad patterns of problems with compliance with NAALC obligations. Further, they should undertake consultations on non-compliance issues without waiting for outside petitions. The parties should make greater use of Evaluation Committees of Experts.

3) The failure to define the NAALC's obligations has led to unfounded interpretations that severely limit the accord; no opportunity has been provided for regular debate about questioned or contradictory interpretations of the accord or for the resolution of such matters.

Recommendation: The Council of Ministers should actively review interpretations of the NAALC and, in conjunction with the Secretariat, promote public debate on contrary points of view.

4) With few exceptions, the parties have avoided taking actions that would use cases to establish an authoritative interpretation of the NAALC's obligations. Debate about the reach of the NAALC's obligations is a necessary starting point for understanding how governments fail to uphold those obligations.

Recommendation: The NAOs and Secretariat should take every opportunity to frame their reporting and discussions in terms of the NAALC's obligations, not merely repeating them but pushing to interpret them.

5) The parties have avoided reporting fully on cases submitted and establishing effective follow-up measures.

Recommendation: The NAALC's Council of Ministers should establish clear and transparent minimum standards for accepting cases and issuing reports, and the NAOs should adopt them. NAO case reports should be required to directly address all claims made by petitioners and to include findings regarding those claims, but they should also allow the NAOs to address issues not directly raised by petitioners. Ministerial agreements, which lay out corrective activities, should address the full breadth of concerns of the NAOs. The Secretariat should publish an annual review of how well NAO reports and activities address petitioners' claims and of the impact of ministerial agreements.

To Restructure the NAALC

6) In practice, the lack of an independent body to oversee the functioning of the NAALC has limited the accord, because the signatories have been unwilling to expend the political will necessary to enforce the accord through bilateral or trinational channels. Existing mechanisms, such as Evaluation Committees of Experts, have yet to be convened.

Recommendation: The parties should create an independent oversight agency responsible for reviewing allegations of non-compliance and engaging the governments to take remedial action.

7) The accord provides little guidance for addressing obligations that are not among the NAALC labor principles that can be reviewed by an ECE or arbitral panel. Further, the failure of a party to enforce labor laws related to three fundamental labor rights-freedom of association and the right to organize, the right to bargain collectively, and the right to strike-cannot be brought before an ECE at all.

Recommendation: The signatories should amend the NAALC such that the full range of NAALC obligations can be considered by ECEs or arbitral panels, including the obligation to enforce laws governing all eleven labor principles as well as the obligations to have high labor standards, to strive to improve those standards, to provide access to labor tribunals, and to ensure that labor tribunals are fair.

8) Long delays and cumbersome processes create a disincentive to bringing a case before the NAALC system. It could take years for a case to work its way through the NAALC system. Although it is crucial to allot sufficient time to gather relevant information and evidence, many processes could be streamlined. For instance, no deadline exists for the parties to conclude ministerial consultations. Of course, the delay would be less important if petitioners had a reasonable expectation that the time invested would result in detailed, effective outcomes.

Recommendation: The signatories should agree to establish streamlined timelines for handling cases and impose a reasonable deadline to conclude ministerial consultations.

On Linking Labor Rights and Trade

9) Linking labor rights to trade agreements is crucial to the promotion of labor rights. Not only is it an important way for countries to uphold international labor law, but it establishes a bulwark against using poor labor standards to gain an advantage in trade.

Recommendation: A NAALC-like accord, or one drawing on the NAALC and other such agreements, such as the recently concluded U.S.-Jordan free trade agreement, should be included as an integral element of the Free Trade Area of the Americas (FTAA). Formal debate on linking labor rights and trade should take place in the context of talks designed to establish the FTAA.

Findings and Recommendations Related to the NAALC Signatories

Government of the United States

10) The U.S. NAO has been uneven in its handling of NAALC non-compliance issues. At times, the agency has demonstrated excellent information-gathering initiatives, and some of its case reports have been coherent and strong. Other reports have been evasive and incomplete, ignoring key issues raised by petitioners and failing to address NAALC obligations of relevance. Laudable creativity in deciding which issues to review has been undermined by an aversion to taking on tough topics.

Recommendation: The U.S. NAO should seek to replicate and enhance its best practices with respect to information gathering and reporting on issues related to non-compliance with NAALC obligations. In its case reports, the agency should clearly address all aspects of the petitions it receives; its recommendations for ministerial consultations should include details regarding the issues to be resolved, so that the success or failure of the ministerial agreements can be assessed in light of the problems documented in the first place.

11) Ministerial consultations have failed to resolve the problem of forced pregnancy testing in Mexican export-processing factories (maquiladoras), an issue raised in a petition from 1997. U.S. officials, including former Labor Secretary Alexis Herman, have asserted that Mexican authorities have stated that pre- and post-hire pregnancy and other gender discrimination violate Mexican law, yet the practices continue. This indicates the need to establish an Evaluation Committee of Experts to address the topic and issue recommendations for resolution.

Recommendation: The United States should call for the formation of an Evaluation Committee of Experts to deal with issues related to forced pregnancy testing. The ECE should include an examination of the effectiveness of the steps taken by authorities to end pregnancy-based sex discrimination in Mexico, making recommendations for effective change. In addition, the ECE should study and issue recommendations on a host of issues raised in the complaint about forced pregnancy testing, including the degree to which Mexico has high labor standards in the area of discrimination, problems with access to labor tribunals, and questions about the fairness of labor tribunals in discrimination cases.

12) The government of the United States has exaggerated the impact of the NAALC. In a 1997 report, for instance, the Clinton Administration assigned credit to the accord for Mexico's official recognition of a union previously denied accreditation and for secret balloting at two companies where secret voting had been previously denied. Although these events did occur, the U.S. NAO had failed to criticize the practices in its reports on the various labor rights violations preventing union recognition and secret balloting. The positive results were completely secondary to the work of the agency.

Recommendation: The United States government should more carefully assess the results of the NAALC and report more straight-forwardly on the impact of its own work. If it desires to promote the types of positive changes that it ascribes to the NAALC, the Administration should develop policy and publish NAO reports that directly seek such outcomes.

Government of Mexico

13) The Mexican NAO has, in most cases, failed in its reports to provide more than a repetition of allegations and recitation of the NAALC's provisions. The Mexican authorities' views on the NAALC's obligations are therefore unclear, as is the basis for the ministerial consultations it has sought.

Recommendation: The Mexican NAO should provide detailed findings in its case reports and relate them to the NAALC's obligations. The content of ministerial agreements should be tailored to address violations that the Mexican NAO uncovers.

14) In the Washington State apples case, which was submitted to the Mexican NAO in 1998, ministerial consultations have failed to resolve the serious problems highlighted by petitioners, including the U.S. government's failure to enforce health and safety laws. As a result, an ECE should be formed to investigate and make recommendations on the issues raised by petitioners.

Recommendation: The Mexican NAO should call for the creation of an ECE to address the issues raised and documented by petitioners but left unresolved by ministerial consultations on the case.

Government of Canada

15) The Canadian NAO has processed only three cases, but in the one case it has reported on, it went further than its U.S. or Mexican counterparts in fully examining the issues raised by petitioners and recommending in detail the types of issues that should be addressed through ministerial consultations.

Recommendation: The Canadian NAO should continue to use case reporting to interpret the NAALC. The Canadian NAO should insist that the pending government-to-government agreement in the case in question-related to an auto parts manufacturer that used to be owned by Echlin-be designed to promote effective compliance with the NAALC's obligations.