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 explores whether and how labor provisions in post-NAFTA free trade agreements can be utilized to improve the lives of working women. It does so by examining and comparing significant advances in the development and application of labor norms in FTAs by the Governments of Canada and the United States—two innovators in the development of international trade and labor policy. The article is divided into three sections. Section I sets forth and compares the structure and contents of labor provisions and complaint procedures of post-NAFTA U.S. and Canadian FTAs. It lays the groundwork for this discussion by examining the incorporation of the ILO’s Core Labor Standards into the definition of labor provisions in the U.S.-Jordan FTA. Section I expands on the examination of definitions in U.S. FTA labor provisions in a discussion of the practice of the Government of Mexico under NAFTA in order to posit a theory as to why the U.S. government changed the scope of its definition of U.S. labor law under post-NAFTA FTAs. Section II discusses reports and developments in the application of U.S. post-NAFTA FTA labor provisions between 2009 and 2016. A number of petitions were filed with U.S. Department of Labor (U.S. DOL) between 2009 and 2016, making it possible for the U.S. government to engage in innovative policy making measures in response to issues raised by trade unions, worker rights advocates, and non-governmental organizations (NGOs). Section II shows that during the Obama administration, U.S. DOL applied labor provisions in FTAs in innovative ways that have the potential for improving workers’ lives in the territories of U.S. trade partners. Section III examines U.S. and Canadian FTA labor provisions from a gender perspective, comparing two cases filed under the North American Agreement on Labor Cooperation (NAALC)—the 1997 Pregnancy Testing and 2003 Puebla Garment Manufacturing cases—to gender-based arguments and outcomes in the 2012 Honduras petition under the Central American and Dominican Republic Free Trade Agreement (CAFTA-DR). The article concludes that as a result of creative advocacy efforts by working women's advocates, the U.S. government has more experience than the Canadian government in investigating and responding to public petitions under FTA labor provisions. Nevertheless, definitional shortcomings in U.S. FTAs present a challenge to using them as tools to improve working women’s lives. In contrast, gender protections in Canadian FTA labor provisions have not yet been tested by petitioners but could serve as a useful tool in improving working women’s lives because they contain clear protections for equal pay for equal work for men and women and for the elimination of workplace discrimination based on sex and other grounds.

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