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U.S. Government Approaches do Assessing National Protection of International Labor Rights The final workshop session allowed current and former employees of the U.S. government to discuss U.S. assessments of other countries' perfor- mance in the area of labor rights. The presenters, William Clatanoff (USTR), George White (U.S. Department of State), and Sandra Polaski (Carnegie Endowment for International Peace), also offered their advice and recommendations on improving monitoring of international labor standards, discussing in particular how the Committee on Monitoring In- ternational Labor Standards (CMILS) study may contribute to this effort. William ClatanoJf Assistant U.S. Trade Representative for Labor Mr. Clatanoff opened his presentation with a discussion of the U.S. trade preference programs in which developing countries are given greater access, either through increased quotas or through tariff rate reductions. Although the implementing legislation for these programs may have slightly different wording in the clauses linking labor rights to these preferences, the "classic one," from the Generalized System of Preferences (GSP) is that the president of the United States shall not designate a country as a benefi- ciary if "such country has not taken or is not taking steps to afford interna- tionally recognized worker rights to workers in that country.''] Another GSP §502(b)(G) 40
ASSESSING NATIONAL DOWSED ENFOR CEMENT MECHANISMS 41 formulation, from the Caribbean Basin Trade Partnership Act, permits the president to designate a country as a beneficiary by taking into consider- ation "the extent to which the country provides internationally recognized worker rights."2 The Trade Act of 2002 adds that countries shall not be designated if "such country has not implemented its commitment to elimi- nate the worst forms of child labor." Mr. Clatanoff noted that a literal interpretation of this last point would allow a country that has not ratified the ILO's Convention 182 on the Worst Forms of Child Labour, and "there- fore has no commitments, Eto] engage in slavery at will." Assessing Country Compliance with Worker Rights' Provisions of U.S. Trade Programs Mr. Clatanoff explained that the process for determining country eligi- bility for GSP benefits revolves around a subcommittee of the Trade Policy Staff Committee (TPSC). The TPSC has representatives of 19 U.S. gov- ernment agencies, including the Departments of State, Labor, Commerce, Justice, and Customs; the Trade Representative; Office of Management and Budget; National Security Council; and the Council of Economic Advi- sors. The GSP subcommittee meets when trade legislation is reauthorized and in response to a petition process. Each year, a notice is published in the FedLeral Register requesting petitions on country or product eligibility. This procedure is available to "interested parties or foreign governments," and the GSP subcommittee evaluates each petition to determine whether it warrants further review. The Office of the U.S. Trade Representative (USTR) also has the authority to self-initiate country eligibility reviews, but this rarely has been used.3 Mr. Clatanoff described the procedures of the TPSC as relatively infor- mal, collegial, and unstructured, noting that there are rarely more than 7 of the 19 member-agencies represented at a country eligibility meeting. The starting point for these meetings is a review of the workers' rights section of the State Department's annual Country Reports on Human Rights Practices. This is supplemented by information from Department of Labor staff mem- 2CBTPA §21 1 (b) (5) (B) (iii). 3Mr. Clatanoff offered the case of Chile as an example of a USTR-initiated review, resulting in the removal of benefits after General Pinochet assumed power. After Chile restored democratic rule, the USTR again initiated a review and restored country eligibility.
42 NATIONAL LEGAL FRAMEWORKS hers, who compile reports from the ILO and other relevant sources. In almost all cases, the reports ofthe International Confederation of Free Trade Unions (ICFTU) are also reviewed. Mr. Clatanoff also noted that he regu- larly turns to his "informal sources" such as contacts at the AFL-CIO. If the review has been initiated as the result of a petition, the information and sources cited in the petition are included in the deliberations. In these cases, the government of the country in question is offered an opportunity to respond to the contents of the petition. The petition is also sent to the U.S. embassy in the country, and the labor attache or labor reporting of- ficer is asked to comment on or update relevant information.4 If the petition appears to have merit, often the next step is to ask the government concerned what will be done to address the situation, that is, the petition is used to "extract some promises from the government." Some- times the requested actions are simple and direct, but often they are long- term in nature. According to Mr. Clatanoff, one of the most difficult prob- lems is the limitation on the types of requests that the U.S. government can make of the executive branch of another government. For example, in a country with a separation of powers, the executive branch cannot be re- quired to ensure that the judiciary or legislative branches act in a particular way. In cases where the national law does not appear to be consistent with applicable standards, the executive branch may be asked to draft or intro- duce legislation. A common approach to this issue is to ask the country to accept an ILO mission so that it can receive ILO recommendations on legislative changes. Mr. Clatanoff said that ILO involvement is appreciated because the United States is generally averse to recommending labor laws to other countries. If a petition is accepted, a more thorough investigation and further consultation with the country follow. However, the final deci- sion on any eligibility is, in Mr. Clatanoff's words, "a judgment call" based on assessing outcomes and the "totality of the facts." As an extreme ex- ample, he offered what he termed the "Clatanoff Rule" for determining whether there is a lack of freedom of association. "If someone tries to form a union, they can't get shot, fired, or jailed. I'm sorry; I know there are thousands of pages of ILO jurisprudence that I am not going to read Ibutl that's my criteria shot, fired, or jailed, you're not given freedom of asso- . · .. clatlon. 4Each American embassy has either a labor attache or labor reporting officer, who is generally responsible for drafting the workers' rights section of the State Department Country Reports on Human Rights Practices.
ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 43 Mr. Clatanoff concluded by noting that there is no scale or ranking of compliance, nor does he think that one would be advisable. As he said earlier in his presentation, he does not think that many compliance issues are measurable, and he questioned where you would "draw the line if you could do it." In addition, refraining from a scale or ranking approach "avoids the huge philosophical question of whether you are trying to mea- sure it in the absolute or are you trying to measure changes, particularly in the way our law is written. If a country moves from 93 to 89, do we pull GSP? But another country moves from 37 to 39, so it's okay?" George White Director, Office of International Labor Affairs, ~ S. Department of State Mr. White opened his presentation by saying that although govern- ment policies are guided and often shift from one administration to an- other, labor policy has been quite consistent over the past decade as the North American Free Trade Agreement (NAFTA), the Caribbean Basin Initiative, the African Growth and Opportunity Act (AGOA), and a bilat- eral agreement with Jordan, among others, have been negotiated. "Under- lying our efforts in these areas is the principle of trying to use trade incen- tives, opening to the U.S. market, or other benefits that other countries derive from these agreements as a way to induce better performance in their country on worker rights, human rights, and other issues like that." The broader U.S. interest, he said, is the promotion of broader economic and political development "in which globalization has some of the rough edges taken off so it promotes more stability, and we have ways in which we can hope to get rid of some of that political alienation and economic envy that drives anti-Americanism around the world." Promoting Workers' Rights Through U.S. Trade Agreements Mr. White described how trade agreements provide tremendous lever- age even before they are signed. The U.S. embassies and the State Depart- ment can take advantage of the opportunities to talk to these governments about some of the commitments they have already assumed under GSP, for example, or the Caribbean Basin Initiative or through an ILO pro- gram but may not have fully implemented. One of the general principles in these discussions is whether or not the laws themselves are adequate and whether they are enforced in any meaningful way. Mr. White added that
44 NATIONAL LEGAL FRAMEWORKS this dialogue, while built on the leverage of the United States in the nego- tiations, might also offer some leverage to government ministries. "In many cases, governments may have the best of intentions, may have decent laws on the books, but they're not enforcing them or they're faced with tremen- dous political pressure not to do so. Often times this occurs with free trade zones, export processing zones, or others where powerful political and eco- nomic interests within the country own large shares of these areas and want to make sure that they maximize their profit.'' Ministries of labor may therefore be in a better position to carry out their inspection and enforce- ment roles if they are backed by the knowledge that failing to regulate conditions in those zones will lead to reduced access to the U.S. market. Mr. White noted that discussions on workers' rights focus on issues such as "the true right to collective bargaining, the right to freedom of assembly, and discrimination." Indicators of problems in these areas in- clude an absolute lack of collective bargaining agreements or the absence of shop stewards on the factory floor in export processing zones. While these seem to be obvious examples of potential problems, it is often not so simple, and the State Department, like many other organizations, is "grasping for indexes and ideas" that would be useful in determining compliance. As Mr. Clatanoff pointed out in the preceding presentation, there are staff at all U.S. embassies who gather information and report on workers' rights, but their experience and knowledge of the issues can vary widely. The United States has only 48 labor attaches, who cover labor issues in their particular country or region. The rest of the embassies have labor reporting officers, "some of whom know very little about labor issues." Mr. White pointed out that the labor reporting officers often require additional train- ing and briefing materials to fulfill their obligations in this area, primarily the drafting of the workers' rights section of the Country Report on Human Rights Practices. Mr. White addressed the inclusion of American corporations in the discussions of country performance on labor rights. "Some of our most valuable allies in this are American companies which have codes of conduct and want to protect their corporate image, their brand names, and are will- ing to talk to their suppliers to make sure that they do indeed adhere to the codes." Mr. White sees this as very important because the suppliers then realize that their purchasing partners are genuinely interested in promoting appropriate policies and conduct. There is still a great deal of work to be done in promoting labor rights abroad. Mr. White said. Various programs, such as AGOA, GSP, and the
ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 45 textile agreement with Cambodia, are part of that process, but he noted that the State Department is looking forward to receiving suggestions on other methods of carrying out the mandate of examining and promoting country compliance with labor standards. Sandra Polaski Senior Associate, Carnegie EndLowmentfor International Peace Ms. Polaski's presentation continued the discussion of the system of U.S. assessments of other countries' labor laws and practices and included suggestions for improving the assessments. She discussed the list of work- ers' rights that the United States includes in its assessments, contending that the inclusion of "acceptable conditions of work," which is not among the ILO fundamental rights, is a critical component of examining labor practices worldwide. As an example, she referred to Lejo Sibbel's presenta- tion on the ILO monitoring program in Cambodia. "When the ILO goes into factories and inspects, what it finds, at least in the formal sector, is not forced labor, is not gender discrimination, is not race discrimination it's a failure to pay wages properly, it's a failure to allow people to have voluntary overtime, it's a requirement for overtime hours that go beyond what's per- mitted by law." Therefore, although Ms. Polaski supports the incorpora- tion of the rights considered under the ILO Declaration, she said that the standards found in U.S. law, by adding "acceptable conditions of work," more fully address the "real problems for real workers." She also added that U.S. assessments of other countries' labor practices are always made for a practical purpose determining "whether to grant benefits that a country doesn't currently receive, whether to maintain benefits that have already been granted, whether to negotiate a trade agreement. It's not for the sake of passing judgment on somebody else, but it's a question of whether that country meets an acceptable standard of behavior as defined by our list of rights for the purpose of taking some practical action." Ms. Polaski addressed the issue of whether the incentive programs found in U.S. trade law can be truly classified as "unilateral," as discussed by David Tajgman. While many bilateral trade agreements include recip- rocal opportunities for greater market access, these programs promise greater access to the U.S. market in exchange for heightened respect for the rights of workers. "Countries step up and say 'we would like to get these benefits, we would like the access to your market, we won't open our mar- ket, but we agree that we will respect the rights of our workers.' Therefore,
46 NATIONAL LEGAL FRAMEWORKS these programs are bilateral in effect." Ms. Polaski said that trade agree- ments in recent years have moved away from the idea of the United States conducting a unilateral assessment of another country's performance. The NAFTA Labor Side Agreement requires a determination by a neutral settle- ment panel if disputes arise, as do the trade agreement with Jordan and the Trade Act of 2002. Additionally, in practice, the reliance on the reports and information of the ILO in any assessment provides a multilateral di- mension to these trade programs. While the State Department's annual Country Reports on Human Rights Practices may be the starting point of an evaluation, ILO materials are also a key information source for the assess- ment, and Ms. Polaski suggested that greater deference should be given to ILO judgments on these matters. However, the ILO supervisory machin- ery moves "fairly slowly, and in some cases where the United States is re- sponding to egregious violations of workers' rights kidnappings, mur- ders, etc. sometimes it's simply not possible to wait for the ILO to act." In less urgent cases, Ms. Polaski said, the United States frequently asks potential program beneficiaries to request technical assistance from the ILO. For example, the considerable assistance that the ILO provided to Cambo- dia and Guatemala in revising their labor laws coincided with "active in- volvement by the U.S. government asking those countries to implement further steps in order to effect respect for worker rights in those countries." Improving U.S. Assessments of Compliance with International Labor Standards To improve U.S. assessments, Ms. Polaski first called for greater trans- parency for the inputs and outputs of the process. For example, while public hearings are not unusual when GSP petitions are filed, she suggested that these hearings should occur in all cases. This would allow petitioners and all interested parties to present their views. In terms of output, while decisions made by the United States are reported, "the reasons for the deci- sion usually are very compressed, they are not fully communicated, and I think that this makes it difficult both for people in this country and in the other country involved to really know what has been expected, what has been asked, what has been committed by the government of the second country." A second improvement to the current assessment process, ac- cording to Ms. Polaski, would be more in-depth, highly organized country- level information. Noting that this is one of the tasks of the National Academies' CMILS, she said, "The work that this committee does can have
ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 47 an enormous impact on the quality and consistency of the decisions that are made by the U.S. government in future determinations of unilateral or bilateral agreements with respect to worker rights." Finally, according to Ms. Polaski, the biggest improvement to the U.S. process would be "greater consistency in the determinations." This has been difficult to achieve partly because of the inherent challenges of mea- suring both the current level of compliance with workers' rights standards and the direction of change, which may vary from context to context. However, Ms. Polaski also pointed out that there have been "real inconsis- tencies" resulting from "variations in the political will of different adminis- trations. And I would not claim that it goes strictly from party to party. I don't think that's been the case at all, but I think that there has been varia- tion in the amount of attention that is paid to the issue of workers' rights internationally and the commitment to make it a higher priority in making decisions about granting benefits to countries." As examples of inconsis- tencies in policy, Ms. Polaski cited the cases of Guatemala and Colombia. Over the past three years, petitions filed on Guatemala have been pursued very actively, while claims of similar abuses from 1985 to 1990 were not acted upon in the same manner. In Colombia it is also "a political determi- nation not to act on the petitions which are filed about the gross violations of the human rights of the workers in Colombia." Greater consistency, Ms. Polaski concluded, "is something which ultimately will have to be brought into the system for it to have true international credibility. And to the extent that the United States can borrow from multilateral organizations like the ILO and write neutral dispute settlement panels into its agree- ments, I think all of those steps that help to bring that kind of consistency will strengthen the program and will produce better results in terms of raising labor standards around the world." DISCUSSION The discussion period allowed the presenters to elaborate on their views on the current challenges facing the U.S. assessment process and how this process might be improved. In particular, the discussion addressed the question posed by Theodore Moran (Georgetown University) on how the work of the CMILS might be most useful to assessors. Mr. Clatanoff reit- erated his earlier point that "ultimately this all boils down to a judgment decision," but there are significant informational needs. The general lack of reliable data and the "huge differences" in the amount of information
48 NATIONAL LEGAL FRAMEWORKS available from various countries means that the United States is often work- ing in an "informational void." As a follow-up, Thea Lee (AFL-CIO) asked whether assessors simply need "more information, or do you need the in- formation better organized, or do you need the people collecting the infor- mation, the labor officers, to be better trained Lor] come into that job with some expertise and experience in labor?" Mr. White responded that there is a need for "all of the above." To be more specific, he added that embassy staff might benefit if the collection and organization of more information were accompanied by further examination of which economic or other in- direct indicators could be useful in determining whether there are prob- lems in a particular country. Correlating the data to certain kinds of abuses could, in some cases, serve as a proxy measure when other indicators are not present. For example, Mr. White suggested that "once you get certain levels of adult unemployment, say around 40 percent, you begin to see horrendous increases in child labor." Sets of indicators could also be tai- lored to certain regions to "indicate systematic problems that are likely to be found throughout similar economies in the area or perhaps attitudinal problems that are based, sometimes and I don't want to say this in a negative kind of way ... on culture." Ms. Polaski added that for the CMILS database to have "value added for the U.S. government, it need Es] to provide some sorting functions, whether that's a quantitative sort of ranking or way of arranging the data." Rather than simply compiling a great deal of information, a valuable re- source must "capture a dynamic element" of change within countries and "ideally would order the information in terms of relative authority, suggest- ing 'this is likely to be most useful to you, this would be second most useful,' and so on." The discussion also addressed the current capacity and training needs of labor attaches and labor reporting officers posted in U.S. embassies over- seas. Mr. White noted that some embassies have staff with considerable expertise, while "others have people who are out there dealing with labor issues for the first time in their career and who have no real background in it." Mr. Clatanoff said it was "ridiculous" that the training offered to labor reporting officers only lasts three weeks and added that he often hears that labor "gets downgraded at embassies because the Ambassador, the Ldeputy chief of mission], the economic counselor doesn't think they do anything for them, they don't get value added out of a labor officer.'' However, in his view, that is because "most labor officers don't know what the hell a labor officer is or should do." Additionally, at smaller embassies, labor officers
ASSESSING NATIONAL LAWS AND ENFOR CEMENT MECHANISMS 49 may be "tasked with a lot of different things and not have the time to truly reflect and try to figure out what are the things they should be looking for." Eric Biel (Fontheim International) initiated a discussion of the pos- sible diminution of the impact of unilateral trade preference programs as the number of bilateral free trade agreements rises. Ms. Polaski agreed that there is a trend in that direction but said that it will take a very long time to negotiate bilateral agreements with all U.S. trading partners. As bilateral agreements replace preferences in particular countries, she said, protections for workers' rights should "produce a much higher level of protection be- cause the free trade agreements will be complete free trade agreements, not just preferences on some products, but all products eventually will be ad- mitted, and therefore the advantages that are accorded to workers should be greater." Ms. Polaski also pointed out that in addition to addressing workers' rights, provisions in U.S. trade agreements call for efforts to dis- tribute the benefits of trade, raising the living standards in the trading part- ners. "Protecting workers from abuses at work is a mechanism for distrib- uting the benefits of trade more broadly so I think there's a very, very high burden now on the U.S. government to implement this guidance from Congress in the trade negotiations that are under way." Mr. Clatanoff added that according to the instructions from Congress in the Trade Act of 2002, it is quite clear that the United States should ensure that countries incorporate international labor standards into their laws and that they do not fail to enforce these laws. "And the intriguing part, the difficult part when it really gets down to negotiating the clause in a trade agreement with most of our trading partners, is the provision that all principal negotiations of a trade agreement should be treated equally, equipped with equivalent remedies and equal access to dispute settlement, etc. The fact is the world at large fears American protectionism and fears the use of labor standards in . . . .. trace agreements as protectionist. The session concluded with further discussion of the role of the CMILS, particularly in its charge to create an information resource for the U.S. Department of Labor within the broader context of U.S. assessments of country labor practices. Mr. Clatanoff emphasized the point made by earlier speakers: Whoever collects and maintains the information should be independent from the "decision makers." Referring to Mr. Sibbel's presen- tation on ILO monitoring of Cambodia's garment sector, Mr. Clatanoff said, "If anybody in Cambodia thought the ILO was the one that was going to decide upon textile quotas, you would get very different results in com- pliance and behavior and everything to do with their project. I want their
50 NATIONAL LEGAL FRAMEWORKS information, I want their monitoring, but keep them at arm's length from that economic position." Similarly, Ms. Polaski advised the National Acad- · ~ · r · · · r · · r 1 1 emles committee to focus on organizing 1ntormatlon in a useful way, ratner than making "a judgment about whether benefits will flow from that or not."