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Improving Compliance in US Trading Partners

 All parties to US free trade agreements should make compliance with workers’ rights provisions a priority from the start of trade talks. To facilitate such compliance, the United States should raise workers’-rights-related concerns with its potential trading partners at the beginning of trade negotiations and make clear that it will not conclude an agreement until such concerns are satisfactorily addressed.

In contrast to commercial concerns, which the United States customarily identifies near the beginning of trade accord negotiations and pressures a potential trading partner to rectify before talks wrap up, workers’-rights-related deficiencies are often not raised until the last stages of negotiations or, worse, until after they have concluded. Even the “meaningful labor rights report” that the now-expired Trade Act of 2002 required the executive branch to prepare on each potential US trading partner’s labor laws and practices was drafted in every case after the trade accord had been concluded and only shortly before the accord was submitted to the US Congress for approval.²⁵

The measures needed to bring a country’s labor laws and practice into compliance with the workers’ rights provisions contained in US trade agreements are frequently complicated and politically fraught, and they can take years to complete—often the full two to three years that many trade negotiations last.²⁶ A last-minute approach to identifying labor-rights-related deficiencies, therefore, can lead to imperfect and incomplete solutions, as potential US trading partners scramble to remedy their failings before their accords are sent to a demanding and, at times, hostile US Congress. For example, Peru issued piecemeal, controversial labor-related executive decrees on the eve of congressional consideration of the US-Peru agreement, in lieu of more effective and comprehensive but time-intensive labor law reforms. Similarly, in the case of the pending US-Colombia accord, instead of working closely with Colombia on its workers’ rights problems from the start of trade talks in November 2003, the US government is now seeking to identify quick and easy fixes as the debate over the accord rages, rather than long-term, sophisticated solutions that Colombia’s entrenched and complex problems demand.

Recommendations

Require that a Redefined “Meaningful Labor Rights Report” be Produced Before Trade Talks Start

The US Department of Labor should be required to prepare a truly “meaningful labor rights report,” one that is submitted to the US trade negotiating team and relevant committees of the US Congress before any trade talks start, is sufficiently succinct to be useful, and is redefined to focus on the areas in which a potential trading partner’s labor laws and enforcement fall short of what will be required in the free trade agreement under negotiation.²⁷ The report should also set forth recommendations for improvement and establish clear benchmarks that a potential trading partner must meet before being deemed in full compliance.

Identify Labor Problems at the Start of Trade Negotiations and Demand Solutions

US trade negotiating teams should communicate to any potential US free trading partner at the start of trade negotiations the findings, recommendations, and benchmarks set forth in the redefined “meaningful labor rights report” prepared for that country and demand that the recommendations be fulfilled and the benchmarks met before negotiations are finalized. This approach would loosely follow the example of Trade and Investment Framework Agreements, which the United States often negotiates with countries to “address[ ] specific [commercial] trade problems” and “creat[e] momentum for liberalization that in some cases can lead to a Free Trade Agreement.”²⁸

Facilitate Compliance

The United States should assist trading partners by providing technical assistance and needed capacity building, including financial assistance, both during trade talks and after agreements are in force to facilitate compliance with recommendations and benchmarks on effective labor law enforcement.²⁹ To ensure that such assistance is effectively and appropriately utilized, the US Congress should explicitly grant the US Department of Labor multi-year spending authority to distribute needed aid but make each disbursement of aid contingent upon regular demonstrations by the receiving parties of measurable workers’-rights-related improvements.

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