Opinion: For whom does a labour chapter work?

INTERNATIONAL union rights Page 22 Volume 22 Issue 1 2015 OPINION ❐ TRADE AGREEMENTS What does the CAFTA-DR labour dispute tell us about the potential to protect labour standards in TTIP? establish that the alleged violations (which it insists are unsubstantiated) cannot amount to a breach of CAFTA-DR Article 16.2.1(a), namely ‘a failure to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties’. The Guatemalan government argues, inter alia: (i) that the action or inaction of the relevant bodies (including labour courts) is outside of the scope of the provision, which covers only the executive branch of government (para. 181); (ii) that in order to qualify as ‘sustained or recurring’ a course of action or inaction must ‘have formed part of a deliberate policy of neglect… with the intended consequence of having an effect on the exchange of goods or services among all of the States that are part of CAFTA-DR’ (para. 273); and (iii) that trade between the Parties has, in any case, not been affected (para. 472). Whatever the merits or otherwise of these interpretations , what is abundantly clear is that the labour provision in CAFTA-DR is by no means a juridical panacea for the enforcement of labour standards among its members. The panel is chaired by Canadian labour law professor Kevin Banks, but as Guatemala has been keen to point out, CAFTA-DR is a trade agreement, not a labour agreement. And the language of the provision reflects this. However, there are limits to this case that do not derive from the legalese of the text alone. The systematic use of violence against trade unionists has been – somewhat dubiously – omitted from the US submission. Seven members of the Guatemalan Izabal Banana Workers’ Union (‘SITRABI’) have been murdered since 2008 when SITRABI co-signed the CAFTA-DR complaint , and a total of sixty-four union leaders have been killed in Guatemala since 2007. Apparently, the USTR does not consider such matters as violations of the CAFTA-DR labour chapter. As a result, the failures of the Guatemalan authorities to investigate these deaths or prosecute those responsible for them will not feature in the current dispute. Trade agreements are for trade, labour chapters are for…? During the negotiations and signing of CAFTADR , national unions across all of its member countries opposed the agreement. Between 2002 and 2005, numerous mass demonstrations took place in Guatemala demonstrating against its potential impacts. The ITUC joined this opposition1 . Even Barack Obama opposed CAFTA. Opposition focused not only on labour standards , but also on the effects of trade liberalisaT he case against Guatemala under CAFTA-DR (the Dominican Republic-Central America Free Trade Agreement), initiated in September 2014, is the first labour dispute under a trade agreement to proceed to arbitration. Guatemalan unions, in cooperation with the American Federation of Labor and Congress of Industrial Organizations (‘AFL-CIO’), lodged their first complaints through the CAFTA-DR mechanism in 2009, alleging gross violations of labour rights in Guatemala. It has taken more than six years from that date for the US Government to initiate the proceedings, following repeated delays, extensions, and abandoned attempts at consultations with the Guatemalan government. This landmark moment provides a useful opportunity to consider the potential for including labour rights provisions in free trade agreements . The allegations against Guatemala have been widely reported: unions have long highlighted widespread anti-union discrimination and the murder of trade unionists, and in 2014 the ITUC ranked Guatemala one of the worst places in the world for workers. For workers in the EU, such horrors might seem far removed, but with the race under way to create the mega-regional Transatlantic Trade and Investment Partnership (‘TTIP’) – and with it, a new and expansive world of trade-related regulation – the question of whether labour provisions in trade agreements actually work (and for whom do they work) is worthy of some critical reflection. The action and inaction of Guatemala (and the US) The US has negotiated labour provisions into 13 FTAs – with 19 partner countries – over 22 years, each with some degree of enforceability. The United States...

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