Testimony of Thea M. Lee, Assistant Director for International Economics (AFL-CIO)
Comments on the proposed U.S. – Central America Free Trade Agreement (CAFTA)
We appreciate this opportunity to offer comments on the proposed free trade agreement with Central America, on behalf of the thirteen million members of the AFL-CIO. The AFL-CIO welcomes closer economic ties with Central America, but we are deeply concerned that the standard free trade agreement model will not work for working families in Central America and United States. The countries of Central America - Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua - face many obstacles to achieving robust, stable development: high rates of poverty and inequality, unsustainable debt burdens, declining terms of trade for many of their products on world markets, and fragile democratic structures that are still grappling with the legacy of decades of political violence. Any trade agreement with the region must recognize and address these challenges.
We are working closely with trade unions in Central America to develop proposals for an integration model based on a foundation of strong domestic institutions, including independent, democratic trade unions and states with the capacity to regulate employers and protect workers' rights. Our proposals recognize the United States' own responsibility to contribute to the long-term social, political, and economic development of the region, and to work with the governments of Central America to find common solutions to some of our common problems, such as crushing external debt burdens and the rising pressures on immigrant workers. Simply expanding market access and freeing capital will not stimulate real development in Central America. Increased trade with the region must be accompanied by improvements in workers' rights, measures for debt reduction, a just immigration policy, and commercial rules that safeguard the public interest, not just private profits.
Any trade agreement that falls short of these proposals will be a failure for Central America and a failure for American workers, and we will work with our allies across the region to oppose it.
Workers' Rights in Central America Workers in Central America have too often been excluded from the benefits of increased trade in the region, as they continue to struggle to have their basic human rights respected in the workplace. Repeated and systematic violations of workers' rights retards the development of Central American countries, and drags down standards for American workers who are thrown into a vicious race to the bottom with their fellow workers in the region.
Not one Central American country included in the proposed CAFTA comes close to meeting a minimum threshold of respect for the ILO's core labor standards: freedom of association, the right to organize and bargain collectively, and freedom from child labor, forced labor, and discrimination. While the labor movement has been able to pressure Central American governments to improve labor rights with some positive results in a few cases, there are hundreds more where governments have stood by while labor rights are violated, or have themselves been the violators. There has been no significant improvement in any of the areas discussed in the AFL-CIO's July 17, 2000 comments on Caribbean Basin Trade Partnership Act (CBTPA) eligibility. Some of the most troubling cases of continued workers' rights violations in the region are detailed below.
Costa RicaThe Costa Rican government has fostered and promoted specific mechanisms to undermine collective bargaining. The labor code explicitly permits direct dealing between employers and employees over terms and conditions of employment. It permits the formation of "Permanent Workers' Committees" that are authorized to present complaints or requests on behalf of the workforce. In practice, these committees are effectively controlled by employers. And the government continues to encourage the formation of Solidarista associations that, despite being explicitly prohibited from collective bargaining, have increasingly taken over functions that properly belong to unions.
Collective bargaining in the public sector is effectively prohibited. The government has consistently interpreted the 1979 General Law on Public Administration to prohibit collective bargaining for most categories of public employees. Examples of workers who do not have the right to bargain include cooks in school cafeterias, garbage collectors, highway maintenance workers, and musicians in the National Symphony Orchestra. Attempts to resolve public sector labor disputes through the arbitration procedures established in the Labor Code were held unconstitutional in 1992.
The AFL-CIO filed a petition in June 2001 requesting removal of Costa Rica from the list of countries eligible for benefits under the Generalized System of Preferences (GSP). The government's reaction, rather than to respond to the serious issues of worker rights violations raised by Costa Rican unions, was to accuse the unions of being - in the words of a Presidential spokesman - "traitorous, ingenuous, and evil."
An ILO technical mission visited Costa Rica in September 2001. The mission reported the existence of serious problems in the application of Conventions 87 and 98, emphasizing the "confusion, uncertainty, and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector."
The Costa Rican government, in a recent letter to USTR, claimed that it had made great progress on worker rights. In fact, the government's record has been one of inaction and, frankly, deception.
The government claims that it has submitted ILO Conventions 151 and 154 to the legislature for ratification. What they do not say is that this ratification has been pending for 15 years.The government asserts that it has proposed amendments to Article 192 of the Constitution and the General Act on Public Administration to permit collective bargaining in the public sector. Again, similar proposals have been pending for at least a decade with no action.
The government also touts its proposed reforms on freedom of association. But in fact its draft amendment to the Labor Code unilaterally and significantly weakens the reform package that was agreed on by labor, business, and government but never enacted - because the government subsequently demanded major concessions on wage flexibility in exchange for its support. As well, the 2002 amendment contains numerous exceptions that render it ineffective.
The government asserts that it has improved prosecution of anti-union acts. But the statistics it provides on employment cases lump freedom of association cases together with all sorts of individual employment cases, disguising the delays of up to nine years in adjudicating freedom of association claims.
The government purports to have reactivated social dialogue. In fact, the new "Commission on Labor Reform" chaired by the Minister of Justice was constituted on September 5 but has never been convened despite union requests to do so, apparently because the government has not appointed a new Minister. The "National Commission on Employment" has never met. The labor-business dialogue has some union participation, but focuses on employment policy, not worker rights.
In short, the government of Costa Rica is making the same promises to reform it labor laws that it made in 1992, in 1995, in 1998, and two years ago. And there is far less reason to believe these promises now than a decade ago.
El SalvadorThe government of El Salvador's continued assault on trade union freedoms has provoked significant social protest. On November 9, as many as 300,000 people marched in San Salvador to support health care unions that are striking to protest the privatization of public hospitals. The government has sought to weaken health care unions by illegally firing their members. In July 1999, 221 workers were fired. Despite a Supreme Court order of reinstatement in July 2001, the government has not allowed the fired workers to return to their jobs.
In the apparel-producing maquilas, the violations of worker rights disclosed in a USAID-funded report by an investigative unit of the Ministry of Labor in August 2000 continue. The most serious current case is the TS2 factory in the San Bartolo FTZ, owned by the Taiwanese multinational Tainan Enterprises and producing for the Gap and other U.S. retailers. In 2000, workers began organizing a section of the Sindicato de Trabajadores de Industrias Textiles (STIT). The organizing effort faced a series of reprisals, including the firing of two union leaders on February 26, 2001 and continued efforts by management to force workers to join a company-sponsored union. The union asked the Labor Ministry for legal recognition on May 23 and finally received it on July 9. Union supporters continued to receive threats of dismissal and physical attacks orchestrated by the Taiwanese managers.
On October 17 2001, 109 workers from the unionized TS2 plant in Tainan were illegally suspended. A protest organized by the union caused Tainan to reinstate the suspended workers on November 4. STIT continued to organize and on April 18 presented evidence of majority support required to negotiate a collective bargaining agreement (the first case of collective bargaining in the Salvadoran maquilas). That same week, Tainan announced that it was shutting down its plants because its clients allegedly no longer wished to work with unionized workers. On April 26 2002, Tainan began breaking down its machinery in the San Bartolo factory.
Tainan workers have taken their case to the Gap's shareholder meeting and the U.S. Congress. Eleven members of Congress signed a letter asking Gap not to "cut and run" from the TS2 factory. On September 13, 2002, a judge of the Fourth Labor Court declared Tainan's suspension of its employees' work contracts illegal. Yet Tainan has not accepted STIT's demand to reopen the factory.
Another case involving serious violations of worker rights occurred at the International Airport. For several years, the union representing workers under a collective bargaining agreement with the airport authority has publicly opposed the government's plans to privatize the airport. On September 23, 2001 at 11:00 p.m., Salvadoran Armed Forces and specially trained police assault forces entered the airport without prior warning and proceeded to disarm airport security personnel. They informed the workers that they had been fired and instructed them to leave the airport. The next day, the same forces denied entrance to airport personnel who worked in maintenance and loading zones. Military officials accosted individual workers, demanding that they renounce their membership in the union. On September 25, the head of the armed forces at the airport informed workers that only those in maintenance could return and that 157 employees, all union members, were fired.
A Labor Ministry investigation of the union's claim that the authority was engaging in an illegal lockout documented a series of anti-union actions including threats and denial of access to the union office; however the Ministry refused to draw a legal conclusion or take any further action. The union also presented its claim to a Civil Judge in Zacatecoluca on September 24. The judge informed the union that the court would conduct an "inspection" of the airport (a procedure not contemplated in the Labor Code). Finding that the airport was operating, albeit with military personnel, the judge declared on October 1 that airport management had not violated the law. The union appealed the decision but the appeal was denied. It also filed a complaint with the ILO Committee on Freedom of Association, which asked the government to investigate the case and reinstate and workers dismissed on account of union activities. Likewise, the government's Human Rights Procurator, in a report dated December 20, 2001, concluded that the authority had illegally interfered with union activities and requested that the dismissed workers be reinstated with back pay.
In February 2002, the union and the authority reached an agreement allowing 64 workers to form a cooperative that would be contracted by the authority for baggage handling. These workers are now working the same jobs as before but for less pay and without job security. On March 8, Human Rights Watch sent a letter to the President of El Salvador urging him to ensure that union members at the airport can exercise their right of association and requesting a thorough investigation of the anti-union actions. However, union activists are still being pressured to resign, as evidenced by threats received on July 5 and August 13 of this year.
GuatemalaDespite pressure from USTR, the government of Guatemala continues to systematically violate workers' rights to freedom of association and collective bargaining. Guatemalan labor courts are characterized by lengthy backlogs, delays, and above all the inability to enforce their decisions. The United Nations Mission in Guatemala reports "serious legal inconveniences and practices that make it impossible to achieve effective labor norms such as prompt and thorough treatment by the justice system."The AFL-CIO petitioned USTR to terminate Guatemala's GSP benefits in August 2000. Shortly thereafter, USTR self-initiated a review of Guatemala's eligibility for GSP benefits. A hearing was held in March of 2001. USTR lifted the review following the trial of 22 persons accused in the assault on leaders of the banana workers' union SITRABI and the enactment of a labor law reform bill in April.
The SITRABI trial resulted in convictions of 22 individuals, but none had to serve a jail term. In contrast, the five union leaders who had been assaulted were forced to leave the country and seek political asylum in the U.S. No progress has been made to address the impunity issue in the numerous other cases cited in the AFL-CIO's petition or in many other cases raised in prior petitions, including the cases of six union members murdered since 1999.
According to a Human Rights Watch Report this year, "efforts to form labor unions in the maquila sector have met with devastating resistance from the industry as a whole and, at best, government negligence. Unionization efforts have been countered with mass dismissals, intimidation, indiscriminate retaliation against all workers, and plant closings." No progress has been made in taking either criminal or disciplinary measures against the persons responsible for the assaults on workers at the Choi Shin and Cimatextiles maquilas, who were attempting to organize a union, on July 18, 2001.
The labor law reform approved in April is likewise flawed and inadequate. While the law was improved by affording agricultural workers the right to strike during the harvest, there is no evidence that workers in the countryside (where impunity is most pronounced) have been able to exercise this right in any meaningful way. In other areas, the bill falls far short of the ILO' recommendations. The President is given broad discretion to ban strikes in the public sector, and a highly burdensome requirement is established for the formation of industrial unions - 50% plus one of all workers in the industry.
Recent cases demonstrate the failure of the Labor Code reforms to improve respect for worker rights. The new Article 209 is designed to protect workers in the process of forming a union. It states that workers who have informed the Labor Ministry of their intention to unionize are protected from being fired. It also states that any worker who violates article 77 (which outlines justifications for firing workers) cannot be fired without a court's authorization. The new Article 380 extends protection to all workers at a work site where a judge has declared a "collective conflict."
Both Article 209 and Article 380 have stipulations for the immediate reinstatement of workers fired without authorization. But the government simply refuses to enforce these provisions. A few examples:
o At the Finca Maria Lourdes in Quetzaltenango, 55 workers have been illegally fired since 1995. The labor court has issued seven separate resolutions ordering reinstatement for the fired workers. Each resolution explains that the workers were fired in violation of Article 209 of the Guatemalan Labor Code, which stipulates that workers fired without proper authorization must be reinstated within 24 hours. However, not one of the reinstatement orders has been enforced.
o Salama Horticulture in Baja Verapaz illegally fired 52 workers who were attempting to organize a union on August 27, 1997. Despite a ruling from the Guatemalan Supreme Court in 1999 ordering their reinstatement, the employer has not allowed them to return.
o In the case of the electrical distributor DEOCSA, a labor court ordered the immediate reinstatement of nine fired union members on October 18, 2002. However, the nine employees have not been reinstated.
The new Article 241 states that "confidential employees and representatives of management cannot participate in a strike vote." Yet on October 23 of this year, in a dispute between the Coca-Cola bottler EMBOCEN and its union, a labor court judge issued an order allowing confidential employees to vote on a strike.
These cases demonstrate that labor law reforms will be ineffective so long as the Government of Guatemala (including all three branches of government) lacks the will to fairly apply and effectively enforce laws that protect fundamental worker rights.
HondurasThe Honduran government continues to tolerate a broad and systematic pattern of worker rights violations, particularly in maquiladoras producing apparel for export to the U.S. market. The government has failed to adhere to the commitments made to USTR in a 1995 Memorandum of Understanding. The government has not lived up to its undertaking in the MOU to seek support from all sectors for reforms of numerous sections of the Labor Code that have been criticized by the ILO as restrictive of workers' rights. Nor have labor inspection procedures been modernized as the MOU requires.
The Honduran Labor Ministry and its office of Labor Inspection in San Pedro Sula continue to be problematic with respect to the enforcement of labor rights in the maquiladora sector. Management at the Corazón factory illegally fired union leaders within hours after the SITRACOR union was formed on July 27. Reinstatement of the workers was secured not by the actions of the Honduran Labor Ministry but by direct pressure on Corazon's owners in Korea, Yoo Yang International.
More egregious are continuing reports of collusion between local labor inspectors in San Pedro Sula and plant management. Labor inspectors have intervened consistently on the side of management and have refused to respond to union requests for inspections of worker rights violations. One inspector said that he would come to the factory only if the union paid for his gas.
Rather than investigate anti-union activities, the Labor Ministry has accepted a highly questionable application for recognition by company-backed union. This application is being used to deny workers their basic right to form a union, and again raises questions of collusion between management and Honduran labor officials.Nicaragua Labor rights violations in the Las Mercedes FTZ continued unabated. According to Nicaraguan unions, ten unions have been busted in the Las Mercedes Free Trade Zone this year. Two union leaders fired from the Mil Colores factory have not been reinstated. At the Hansae factory, the plant manager made death threats against workers to try to get them to renounce their union. At the Won Mi factory, a union was legally recognized on July 25; the company immediately fired all but one member of the union executive. Workers have not received payment for overtime worked, in some cases 24-hour shifts.
Workers' Rights in CAFTAWith continued severe violations of workers' rights in Central America, it is extremely troubling that the administration's proposal for a free trade agreement with the region could dramatically and irreversibly weaken the current labor rights conditions contained in the GSP and CBTPA, while extending additional market access to Central American countries. This would provide a perverse incentive to Central American governments, and rob Central American workers of one of the few tools they have to fight for recognition of their basic human rights in the workplace.
The U.S. labor movement and our allies in the region have been able to use the labor conditions of U.S. unilateral trade preference programs - flawed though they are - to achieve some important but isolated improvements in workers' rights in Central America. The GSP and CBTPA require countries to provide internationally recognized worker rights; domestic laws must not only be effectively enforced, but they must also conform to substantive international standards. The programs also contain a public petition procedure to allow interested parties, including trade unions, to initiate complaints about workers' rights violations, and they allow for the withdrawal of trade benefits in the case of such violations.
The administration's reading of the Trade Promotion Authority act, as evidenced in its proposed labor language for free trade agreements with Singapore and Chile, is a huge step backwards from the modest labor conditions of GSP and CBTPA. The administration's proposal would only require countries to enforce their existing labor laws, no matter how inconsistent those laws are with internationally recognized worker rights. Their proposal contains no public petition procedure, and it may even reduce the amount of sanctions now available under GSP and CBTPA. Such a drastic dismantling of labor rights conditions, accompanied by an increase in market access, is completely unacceptable and would set back the struggle for workers' rights in the region for decades to come.
The U.S. has long recognized that Central America's labor laws are not up to international standards. A lone obligation to enforce existing labor laws will not provide sufficient guarantee that core workers' rights are actually respected in the region. The labor provisions of the Central America FTA must be stronger than those found in the Jordan FTA (and much stronger than those proposed for the Singapore and Chile agreements). The Jordan FTA's labor provisions were acceptable for Jordan, because Jordan's labor laws substantially meet ILO standards. These same provisions would be woefully inadequate in the Central American context, and in any other context where labor laws fall far below ILO norms. The Central American governments must reform their labor laws to meet international standards, and continued compliance with these standards and effective implementation of domestic laws must be enforceable obligations in any regional trade agreement with Central America.
Anything less would render the references to promoting ILO standards in the recently passed Trade Promotion Authority act meaningless. It would send a signal to other countries that routine violations of workers' rights present no obstacle to graduating from the benefits of a trade preference programs to participation in a free trade agreement. And it would lock workers in the region into a system of competition based on weak laws and even weaker enforcement, where workers are unable to exercise their basic human rights and denied access to their fair share of the benefits of expanded trade.
Finally, it is essential that the dispute settlement and enforcement mechanisms for the labor and environmental provisions of an agreement be the same as those mechanisms for the commercial provisions of the agreement. The labor and environmental provisions must be in the core of the agreement, not in a side agreement. To the extent that the agreement outlines precise procedures to strengthen enforcement in other areas such as intellectual property rights protection, it ought to do the same for the enforcement of labor and environmental measures. Any monetary enforcement mechanism must contain strong rules to ensure that fines are large enough to deter violations, and any fines spent to remedy enforcement problems must truly fulfill that goal. At the end of the day, if fines do not fully remedy workers' rights violations or are not paid, there must be recourse to trade sanctions to enforce the labor provisions of an agreement.
The inclusion of enforceable workers' rights provisions is necessary to make a trade agreement with Central America a successful model for economic integration, but it is not sufficient. The agreement must include equitable and transparent market access rules that allow for effective protection against import surges or other trade law violations, and must include enforceable protections for the environment. NAFTA-style commercial provisions that protect corporate rights at the expense of public health and safety, the environment, essential human services, and equitable economic development must be reformed. Some of these provisions are outlined below.
ImmigrationImmigrant workers from Central America make important contributions to the U.S. economy, to their communities, and to their workplaces. Many of these workers are vital and active members of our American labor movement. Yet these workers face routine violations of their rights to organize here in the U.S. The Supreme Court's Hoffman Plastics decision is just the most recent example of how immigrant workers' legal status is used to deny them their basic rights in the workplace. The AFL-CIO supports a legalization program for immigrant workers that is based on the creation of permanent legal status, full protection for workers' labor rights, and vigorous enforcement of labor laws.
The kinds of expanded guest worker programs that have been proposed in the Chile and Singapore negotiations will not provide the security or rights that immigrant workers need, and will not stimulate the development that Central American economies require. Without adequate protections for the fundamental rights of both migrant and domestic workers, temporary entry programs become an easy way for corporations to circumvent domestic labor laws and to weaken the ability of workers to join unions and demand fair compensation. Proposals to do away with the few protections that exist in our current temporary entry program - lists of professional categories, prevailing wage provisions, and requirements to reach out to domestic workers and not undermine labor conditions in the domestic market - have absolutely no foundation in the Congressional negotiating objectives of Trade Promotion Authority and have no place in a fast-tracked trade agreement.
No solution to the immigration problem is possible unless an integration agreement enables the countries of Central America to pursue real, sustainable development that will create economic security for rural populations and good jobs for Central American workers. Equitable economic development, based on strong workers' rights and robust domestic demand, is the only way to relieve the pressure on workers in the region to leave their homes and their families in search of work.
Debt and FinanceAn agreement with Central America must allow countries to regulate the flow of speculative capital in order to protect their economies from the kind of excessive volatility that has led to financial crises in Mexico and Argentina and now threatens Brazil. In addition, the agreement must address the possibility of massive currency devaluations and the impact these devaluations have on fair competition in the region. Any agreement should include debt relief measures that will allow Central American countries to adequately fund education, health care, and infrastructure needs, thereby contributing to closing the gap between rich and poor within and between nations, and diminishing the financial instability caused by mounting debt burdens. Finally, U.S. development assistance to the region should increase significantly.
InvestmentNAFTA gives corporations the right to challenge our laws in secret tribunals and to demand compensation from governments. NAFTA's investment chapter is seriously flawed, and multinational corporations have exploited these flaws to challenge legitimate government regulations designed to protect the environment, shield consumers from fraud, and safeguard public health. The AFL-CIO strenuously objects to the inclusion of investment measures modeled on NAFTA Chapter 11 in a trade agreement with Central America.
Investment rules should not grant investors any rights greater than those rights that domestic investors already enjoy under U.S. law. Only direct expropriations of real property - not regulations that diminish an investor's returns - should be disciplined by trade rules. Minimum treatment obligations should be limited to the procedural fairness requirements of customary international law.
An agreement with Central America should contain a broad carve-out allowing governments to regulate corporate behavior to protect the public interest. Government regulations that are reasonably related to legitimate policy aims such as environmental protection, public health and safety, consumer protection, the regulation of anti-competitive practices, and the protection of human rights and workers' rights - including protections necessary to fulfill a government's obligations under ILO conventions and international human rights instruments - must not be subject to challenge under and agreement.
A trade agreement should rely on government-to-government rather than investor-to-state dispute resolution. If a private right of action for investors is created, it should at a minimum require exhaustion of domestic remedies and an opportunity for home states to intervene in disputes involving their investors. All dispute resolution mechanisms should be fully transparent and accessible to interested members of the public.
ServicesNAFTA and WTO rules restrict the ability of governments to regulate services - even public services. The U.S. company UPS is arguing that Canada's public postal service violates NAFTA, because governmental support for the postal service is an unfair subsidy. Increased pressure to deregulate and privatize services could raise the cost and reduce the quality of such basic services as health care and education. Any agreement with Central America should contain a broad, explicit carve-out for important public services, including those provided on a commercial basis or in competition with private providers. There should be no pressure on governments to open their pension systems or other public services to more private competition, or to lock in private competition in these sectors. Services rules should be negotiated sector by sector, and should preserve the ability of national, state and local governments to regulate private service providers in the public interest.
ProcurementNAFTA and WTO rules on procurement restrict the public policy aims that may be met through procurement policies at the federal, state, and local level. For example, in the Executive Order banning the federal purchase of goods made by forced child labor, signatories to these procurement agreements were specifically exempted from the order out of fear that the order would violate trade rules. The U.S. should focus on revising - not extending - this flawed model. Trade agreements should not constrain those procurement rules that serve important public policy aims such as environmental protection, local economic development and social justice, and respect for human rights and workers' rights. Governments have a right to invest their tax money in local firms and to use procurement policy to pursue broader social goals.
Intellectual Property Rights An agreement with Central America should allow all parties to take full advantage of the flexibility available under WTO Trade Related Agreement on Intellectual Property Rights (TRIPs) to compel the licensing of life-saving pharmaceuticals in a public health crisis. Any agreement, rather than constraining this flexibility, should clarify the TRIPs exception to ensure that public health crises are considered national emergencies within the agreement, and to ensure that if a government uses this exception it will not be subject to sanctions under the free trade agreement or any other trade law.
E-Commerce If the CAFTA commits the Parties to refrain from "imposing unnecessary barriers on electronic transmissions, including digitized products," as does the Jordan FTA, we believe it is important that the agreement clarify that such a clause would not be a barrier to any future state initiatives to tax goods sold over the Internet or other non-discriminatory tax measures. We are aware of the ample precedent in international trade law for exempting non-discriminatory taxation schemes from commercial agreements. We are also aware that there is a common understanding among trading partners that most destination-based consumption taxes are not viewed as barriers to trade. However, we believe it is important to make this understanding explicit under any agreement with Central America. We therefore request that the agreement explicitly exempt existing state sales tax regimes and non-discriminatory taxation more generally from any new disciplines on e-commerce.
DemocracyThe FTAA negotiators made a significant step forward before the 2000 Summit of the Americas in Quebec and again this year in Quito by releasing draft texts of the FTAA. We hope for the same kind of transparency in the negotiations with Central America. Citizens in the region have a right to know not only what the draft CAFTA proposals are, but which ones their government is supporting and opposing. Once the agreement is concluded, dispute resolution measures should also be open to the pubic. A transparent, inclusive, and democratic process, both for the negotiation of the agreement and for its eventual implementation, is essential to ensure the legitimacy of the process.
Thank you for this opportunity to submit our views on the proposed free trade agreement with Central America. We believe that the agreement can only succeed if it takes into account the needs of workers and their families in the region, and includes the reforms we have presented here today.
We appreciate this opportunity to offer comments on the proposed free trade agreement with Central America, on behalf of the thirteen million members of the AFL-CIO. The AFL-CIO welcomes closer economic ties with Central America, but we are deeply concerned that the standard free trade agreement model will not work for working families in Central America and United States. The countries of Central America - Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua - face many obstacles to achieving robust, stable development: high rates of poverty and inequality, unsustainable debt burdens, declining terms of trade for many of their products on world markets, and fragile democratic structures that are still grappling with the legacy of decades of political violence. Any trade agreement with the region must recognize and address these challenges.
We are working closely with trade unions in Central America to develop proposals for an integration model based on a foundation of strong domestic institutions, including independent, democratic trade unions and states with the capacity to regulate employers and protect workers' rights. Our proposals recognize the United States' own responsibility to contribute to the long-term social, political, and economic development of the region, and to work with the governments of Central America to find common solutions to some of our common problems, such as crushing external debt burdens and the rising pressures on immigrant workers. Simply expanding market access and freeing capital will not stimulate real development in Central America. Increased trade with the region must be accompanied by improvements in workers' rights, measures for debt reduction, a just immigration policy, and commercial rules that safeguard the public interest, not just private profits.
Any trade agreement that falls short of these proposals will be a failure for Central America and a failure for American workers, and we will work with our allies across the region to oppose it.
Workers' Rights in Central America Workers in Central America have too often been excluded from the benefits of increased trade in the region, as they continue to struggle to have their basic human rights respected in the workplace. Repeated and systematic violations of workers' rights retards the development of Central American countries, and drags down standards for American workers who are thrown into a vicious race to the bottom with their fellow workers in the region.
Not one Central American country included in the proposed CAFTA comes close to meeting a minimum threshold of respect for the ILO's core labor standards: freedom of association, the right to organize and bargain collectively, and freedom from child labor, forced labor, and discrimination. While the labor movement has been able to pressure Central American governments to improve labor rights with some positive results in a few cases, there are hundreds more where governments have stood by while labor rights are violated, or have themselves been the violators. There has been no significant improvement in any of the areas discussed in the AFL-CIO's July 17, 2000 comments on Caribbean Basin Trade Partnership Act (CBTPA) eligibility. Some of the most troubling cases of continued workers' rights violations in the region are detailed below.
Costa RicaThe Costa Rican government has fostered and promoted specific mechanisms to undermine collective bargaining. The labor code explicitly permits direct dealing between employers and employees over terms and conditions of employment. It permits the formation of "Permanent Workers' Committees" that are authorized to present complaints or requests on behalf of the workforce. In practice, these committees are effectively controlled by employers. And the government continues to encourage the formation of Solidarista associations that, despite being explicitly prohibited from collective bargaining, have increasingly taken over functions that properly belong to unions.
Collective bargaining in the public sector is effectively prohibited. The government has consistently interpreted the 1979 General Law on Public Administration to prohibit collective bargaining for most categories of public employees. Examples of workers who do not have the right to bargain include cooks in school cafeterias, garbage collectors, highway maintenance workers, and musicians in the National Symphony Orchestra. Attempts to resolve public sector labor disputes through the arbitration procedures established in the Labor Code were held unconstitutional in 1992.
The AFL-CIO filed a petition in June 2001 requesting removal of Costa Rica from the list of countries eligible for benefits under the Generalized System of Preferences (GSP). The government's reaction, rather than to respond to the serious issues of worker rights violations raised by Costa Rican unions, was to accuse the unions of being - in the words of a Presidential spokesman - "traitorous, ingenuous, and evil."
An ILO technical mission visited Costa Rica in September 2001. The mission reported the existence of serious problems in the application of Conventions 87 and 98, emphasizing the "confusion, uncertainty, and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector."
The Costa Rican government, in a recent letter to USTR, claimed that it had made great progress on worker rights. In fact, the government's record has been one of inaction and, frankly, deception.
The government claims that it has submitted ILO Conventions 151 and 154 to the legislature for ratification. What they do not say is that this ratification has been pending for 15 years.The government asserts that it has proposed amendments to Article 192 of the Constitution and the General Act on Public Administration to permit collective bargaining in the public sector. Again, similar proposals have been pending for at least a decade with no action.
The government also touts its proposed reforms on freedom of association. But in fact its draft amendment to the Labor Code unilaterally and significantly weakens the reform package that was agreed on by labor, business, and government but never enacted - because the government subsequently demanded major concessions on wage flexibility in exchange for its support. As well, the 2002 amendment contains numerous exceptions that render it ineffective.
The government asserts that it has improved prosecution of anti-union acts. But the statistics it provides on employment cases lump freedom of association cases together with all sorts of individual employment cases, disguising the delays of up to nine years in adjudicating freedom of association claims.
The government purports to have reactivated social dialogue. In fact, the new "Commission on Labor Reform" chaired by the Minister of Justice was constituted on September 5 but has never been convened despite union requests to do so, apparently because the government has not appointed a new Minister. The "National Commission on Employment" has never met. The labor-business dialogue has some union participation, but focuses on employment policy, not worker rights.
In short, the government of Costa Rica is making the same promises to reform it labor laws that it made in 1992, in 1995, in 1998, and two years ago. And there is far less reason to believe these promises now than a decade ago.
El SalvadorThe government of El Salvador's continued assault on trade union freedoms has provoked significant social protest. On November 9, as many as 300,000 people marched in San Salvador to support health care unions that are striking to protest the privatization of public hospitals. The government has sought to weaken health care unions by illegally firing their members. In July 1999, 221 workers were fired. Despite a Supreme Court order of reinstatement in July 2001, the government has not allowed the fired workers to return to their jobs.
In the apparel-producing maquilas, the violations of worker rights disclosed in a USAID-funded report by an investigative unit of the Ministry of Labor in August 2000 continue. The most serious current case is the TS2 factory in the San Bartolo FTZ, owned by the Taiwanese multinational Tainan Enterprises and producing for the Gap and other U.S. retailers. In 2000, workers began organizing a section of the Sindicato de Trabajadores de Industrias Textiles (STIT). The organizing effort faced a series of reprisals, including the firing of two union leaders on February 26, 2001 and continued efforts by management to force workers to join a company-sponsored union. The union asked the Labor Ministry for legal recognition on May 23 and finally received it on July 9. Union supporters continued to receive threats of dismissal and physical attacks orchestrated by the Taiwanese managers.
On October 17 2001, 109 workers from the unionized TS2 plant in Tainan were illegally suspended. A protest organized by the union caused Tainan to reinstate the suspended workers on November 4. STIT continued to organize and on April 18 presented evidence of majority support required to negotiate a collective bargaining agreement (the first case of collective bargaining in the Salvadoran maquilas). That same week, Tainan announced that it was shutting down its plants because its clients allegedly no longer wished to work with unionized workers. On April 26 2002, Tainan began breaking down its machinery in the San Bartolo factory.
Tainan workers have taken their case to the Gap's shareholder meeting and the U.S. Congress. Eleven members of Congress signed a letter asking Gap not to "cut and run" from the TS2 factory. On September 13, 2002, a judge of the Fourth Labor Court declared Tainan's suspension of its employees' work contracts illegal. Yet Tainan has not accepted STIT's demand to reopen the factory.
Another case involving serious violations of worker rights occurred at the International Airport. For several years, the union representing workers under a collective bargaining agreement with the airport authority has publicly opposed the government's plans to privatize the airport. On September 23, 2001 at 11:00 p.m., Salvadoran Armed Forces and specially trained police assault forces entered the airport without prior warning and proceeded to disarm airport security personnel. They informed the workers that they had been fired and instructed them to leave the airport. The next day, the same forces denied entrance to airport personnel who worked in maintenance and loading zones. Military officials accosted individual workers, demanding that they renounce their membership in the union. On September 25, the head of the armed forces at the airport informed workers that only those in maintenance could return and that 157 employees, all union members, were fired.
A Labor Ministry investigation of the union's claim that the authority was engaging in an illegal lockout documented a series of anti-union actions including threats and denial of access to the union office; however the Ministry refused to draw a legal conclusion or take any further action. The union also presented its claim to a Civil Judge in Zacatecoluca on September 24. The judge informed the union that the court would conduct an "inspection" of the airport (a procedure not contemplated in the Labor Code). Finding that the airport was operating, albeit with military personnel, the judge declared on October 1 that airport management had not violated the law. The union appealed the decision but the appeal was denied. It also filed a complaint with the ILO Committee on Freedom of Association, which asked the government to investigate the case and reinstate and workers dismissed on account of union activities. Likewise, the government's Human Rights Procurator, in a report dated December 20, 2001, concluded that the authority had illegally interfered with union activities and requested that the dismissed workers be reinstated with back pay.
In February 2002, the union and the authority reached an agreement allowing 64 workers to form a cooperative that would be contracted by the authority for baggage handling. These workers are now working the same jobs as before but for less pay and without job security. On March 8, Human Rights Watch sent a letter to the President of El Salvador urging him to ensure that union members at the airport can exercise their right of association and requesting a thorough investigation of the anti-union actions. However, union activists are still being pressured to resign, as evidenced by threats received on July 5 and August 13 of this year.
GuatemalaDespite pressure from USTR, the government of Guatemala continues to systematically violate workers' rights to freedom of association and collective bargaining. Guatemalan labor courts are characterized by lengthy backlogs, delays, and above all the inability to enforce their decisions. The United Nations Mission in Guatemala reports "serious legal inconveniences and practices that make it impossible to achieve effective labor norms such as prompt and thorough treatment by the justice system."The AFL-CIO petitioned USTR to terminate Guatemala's GSP benefits in August 2000. Shortly thereafter, USTR self-initiated a review of Guatemala's eligibility for GSP benefits. A hearing was held in March of 2001. USTR lifted the review following the trial of 22 persons accused in the assault on leaders of the banana workers' union SITRABI and the enactment of a labor law reform bill in April.
The SITRABI trial resulted in convictions of 22 individuals, but none had to serve a jail term. In contrast, the five union leaders who had been assaulted were forced to leave the country and seek political asylum in the U.S. No progress has been made to address the impunity issue in the numerous other cases cited in the AFL-CIO's petition or in many other cases raised in prior petitions, including the cases of six union members murdered since 1999.
According to a Human Rights Watch Report this year, "efforts to form labor unions in the maquila sector have met with devastating resistance from the industry as a whole and, at best, government negligence. Unionization efforts have been countered with mass dismissals, intimidation, indiscriminate retaliation against all workers, and plant closings." No progress has been made in taking either criminal or disciplinary measures against the persons responsible for the assaults on workers at the Choi Shin and Cimatextiles maquilas, who were attempting to organize a union, on July 18, 2001.
The labor law reform approved in April is likewise flawed and inadequate. While the law was improved by affording agricultural workers the right to strike during the harvest, there is no evidence that workers in the countryside (where impunity is most pronounced) have been able to exercise this right in any meaningful way. In other areas, the bill falls far short of the ILO' recommendations. The President is given broad discretion to ban strikes in the public sector, and a highly burdensome requirement is established for the formation of industrial unions - 50% plus one of all workers in the industry.
Recent cases demonstrate the failure of the Labor Code reforms to improve respect for worker rights. The new Article 209 is designed to protect workers in the process of forming a union. It states that workers who have informed the Labor Ministry of their intention to unionize are protected from being fired. It also states that any worker who violates article 77 (which outlines justifications for firing workers) cannot be fired without a court's authorization. The new Article 380 extends protection to all workers at a work site where a judge has declared a "collective conflict."
Both Article 209 and Article 380 have stipulations for the immediate reinstatement of workers fired without authorization. But the government simply refuses to enforce these provisions. A few examples:
o At the Finca Maria Lourdes in Quetzaltenango, 55 workers have been illegally fired since 1995. The labor court has issued seven separate resolutions ordering reinstatement for the fired workers. Each resolution explains that the workers were fired in violation of Article 209 of the Guatemalan Labor Code, which stipulates that workers fired without proper authorization must be reinstated within 24 hours. However, not one of the reinstatement orders has been enforced.
o Salama Horticulture in Baja Verapaz illegally fired 52 workers who were attempting to organize a union on August 27, 1997. Despite a ruling from the Guatemalan Supreme Court in 1999 ordering their reinstatement, the employer has not allowed them to return.
o In the case of the electrical distributor DEOCSA, a labor court ordered the immediate reinstatement of nine fired union members on October 18, 2002. However, the nine employees have not been reinstated.
The new Article 241 states that "confidential employees and representatives of management cannot participate in a strike vote." Yet on October 23 of this year, in a dispute between the Coca-Cola bottler EMBOCEN and its union, a labor court judge issued an order allowing confidential employees to vote on a strike.
These cases demonstrate that labor law reforms will be ineffective so long as the Government of Guatemala (including all three branches of government) lacks the will to fairly apply and effectively enforce laws that protect fundamental worker rights.
HondurasThe Honduran government continues to tolerate a broad and systematic pattern of worker rights violations, particularly in maquiladoras producing apparel for export to the U.S. market. The government has failed to adhere to the commitments made to USTR in a 1995 Memorandum of Understanding. The government has not lived up to its undertaking in the MOU to seek support from all sectors for reforms of numerous sections of the Labor Code that have been criticized by the ILO as restrictive of workers' rights. Nor have labor inspection procedures been modernized as the MOU requires.
The Honduran Labor Ministry and its office of Labor Inspection in San Pedro Sula continue to be problematic with respect to the enforcement of labor rights in the maquiladora sector. Management at the Corazón factory illegally fired union leaders within hours after the SITRACOR union was formed on July 27. Reinstatement of the workers was secured not by the actions of the Honduran Labor Ministry but by direct pressure on Corazon's owners in Korea, Yoo Yang International.
More egregious are continuing reports of collusion between local labor inspectors in San Pedro Sula and plant management. Labor inspectors have intervened consistently on the side of management and have refused to respond to union requests for inspections of worker rights violations. One inspector said that he would come to the factory only if the union paid for his gas.
Rather than investigate anti-union activities, the Labor Ministry has accepted a highly questionable application for recognition by company-backed union. This application is being used to deny workers their basic right to form a union, and again raises questions of collusion between management and Honduran labor officials.Nicaragua Labor rights violations in the Las Mercedes FTZ continued unabated. According to Nicaraguan unions, ten unions have been busted in the Las Mercedes Free Trade Zone this year. Two union leaders fired from the Mil Colores factory have not been reinstated. At the Hansae factory, the plant manager made death threats against workers to try to get them to renounce their union. At the Won Mi factory, a union was legally recognized on July 25; the company immediately fired all but one member of the union executive. Workers have not received payment for overtime worked, in some cases 24-hour shifts.
Workers' Rights in CAFTAWith continued severe violations of workers' rights in Central America, it is extremely troubling that the administration's proposal for a free trade agreement with the region could dramatically and irreversibly weaken the current labor rights conditions contained in the GSP and CBTPA, while extending additional market access to Central American countries. This would provide a perverse incentive to Central American governments, and rob Central American workers of one of the few tools they have to fight for recognition of their basic human rights in the workplace.
The U.S. labor movement and our allies in the region have been able to use the labor conditions of U.S. unilateral trade preference programs - flawed though they are - to achieve some important but isolated improvements in workers' rights in Central America. The GSP and CBTPA require countries to provide internationally recognized worker rights; domestic laws must not only be effectively enforced, but they must also conform to substantive international standards. The programs also contain a public petition procedure to allow interested parties, including trade unions, to initiate complaints about workers' rights violations, and they allow for the withdrawal of trade benefits in the case of such violations.
The administration's reading of the Trade Promotion Authority act, as evidenced in its proposed labor language for free trade agreements with Singapore and Chile, is a huge step backwards from the modest labor conditions of GSP and CBTPA. The administration's proposal would only require countries to enforce their existing labor laws, no matter how inconsistent those laws are with internationally recognized worker rights. Their proposal contains no public petition procedure, and it may even reduce the amount of sanctions now available under GSP and CBTPA. Such a drastic dismantling of labor rights conditions, accompanied by an increase in market access, is completely unacceptable and would set back the struggle for workers' rights in the region for decades to come.
The U.S. has long recognized that Central America's labor laws are not up to international standards. A lone obligation to enforce existing labor laws will not provide sufficient guarantee that core workers' rights are actually respected in the region. The labor provisions of the Central America FTA must be stronger than those found in the Jordan FTA (and much stronger than those proposed for the Singapore and Chile agreements). The Jordan FTA's labor provisions were acceptable for Jordan, because Jordan's labor laws substantially meet ILO standards. These same provisions would be woefully inadequate in the Central American context, and in any other context where labor laws fall far below ILO norms. The Central American governments must reform their labor laws to meet international standards, and continued compliance with these standards and effective implementation of domestic laws must be enforceable obligations in any regional trade agreement with Central America.
Anything less would render the references to promoting ILO standards in the recently passed Trade Promotion Authority act meaningless. It would send a signal to other countries that routine violations of workers' rights present no obstacle to graduating from the benefits of a trade preference programs to participation in a free trade agreement. And it would lock workers in the region into a system of competition based on weak laws and even weaker enforcement, where workers are unable to exercise their basic human rights and denied access to their fair share of the benefits of expanded trade.
Finally, it is essential that the dispute settlement and enforcement mechanisms for the labor and environmental provisions of an agreement be the same as those mechanisms for the commercial provisions of the agreement. The labor and environmental provisions must be in the core of the agreement, not in a side agreement. To the extent that the agreement outlines precise procedures to strengthen enforcement in other areas such as intellectual property rights protection, it ought to do the same for the enforcement of labor and environmental measures. Any monetary enforcement mechanism must contain strong rules to ensure that fines are large enough to deter violations, and any fines spent to remedy enforcement problems must truly fulfill that goal. At the end of the day, if fines do not fully remedy workers' rights violations or are not paid, there must be recourse to trade sanctions to enforce the labor provisions of an agreement.
The inclusion of enforceable workers' rights provisions is necessary to make a trade agreement with Central America a successful model for economic integration, but it is not sufficient. The agreement must include equitable and transparent market access rules that allow for effective protection against import surges or other trade law violations, and must include enforceable protections for the environment. NAFTA-style commercial provisions that protect corporate rights at the expense of public health and safety, the environment, essential human services, and equitable economic development must be reformed. Some of these provisions are outlined below.
ImmigrationImmigrant workers from Central America make important contributions to the U.S. economy, to their communities, and to their workplaces. Many of these workers are vital and active members of our American labor movement. Yet these workers face routine violations of their rights to organize here in the U.S. The Supreme Court's Hoffman Plastics decision is just the most recent example of how immigrant workers' legal status is used to deny them their basic rights in the workplace. The AFL-CIO supports a legalization program for immigrant workers that is based on the creation of permanent legal status, full protection for workers' labor rights, and vigorous enforcement of labor laws.
The kinds of expanded guest worker programs that have been proposed in the Chile and Singapore negotiations will not provide the security or rights that immigrant workers need, and will not stimulate the development that Central American economies require. Without adequate protections for the fundamental rights of both migrant and domestic workers, temporary entry programs become an easy way for corporations to circumvent domestic labor laws and to weaken the ability of workers to join unions and demand fair compensation. Proposals to do away with the few protections that exist in our current temporary entry program - lists of professional categories, prevailing wage provisions, and requirements to reach out to domestic workers and not undermine labor conditions in the domestic market - have absolutely no foundation in the Congressional negotiating objectives of Trade Promotion Authority and have no place in a fast-tracked trade agreement.
No solution to the immigration problem is possible unless an integration agreement enables the countries of Central America to pursue real, sustainable development that will create economic security for rural populations and good jobs for Central American workers. Equitable economic development, based on strong workers' rights and robust domestic demand, is the only way to relieve the pressure on workers in the region to leave their homes and their families in search of work.
Debt and FinanceAn agreement with Central America must allow countries to regulate the flow of speculative capital in order to protect their economies from the kind of excessive volatility that has led to financial crises in Mexico and Argentina and now threatens Brazil. In addition, the agreement must address the possibility of massive currency devaluations and the impact these devaluations have on fair competition in the region. Any agreement should include debt relief measures that will allow Central American countries to adequately fund education, health care, and infrastructure needs, thereby contributing to closing the gap between rich and poor within and between nations, and diminishing the financial instability caused by mounting debt burdens. Finally, U.S. development assistance to the region should increase significantly.
InvestmentNAFTA gives corporations the right to challenge our laws in secret tribunals and to demand compensation from governments. NAFTA's investment chapter is seriously flawed, and multinational corporations have exploited these flaws to challenge legitimate government regulations designed to protect the environment, shield consumers from fraud, and safeguard public health. The AFL-CIO strenuously objects to the inclusion of investment measures modeled on NAFTA Chapter 11 in a trade agreement with Central America.
Investment rules should not grant investors any rights greater than those rights that domestic investors already enjoy under U.S. law. Only direct expropriations of real property - not regulations that diminish an investor's returns - should be disciplined by trade rules. Minimum treatment obligations should be limited to the procedural fairness requirements of customary international law.
An agreement with Central America should contain a broad carve-out allowing governments to regulate corporate behavior to protect the public interest. Government regulations that are reasonably related to legitimate policy aims such as environmental protection, public health and safety, consumer protection, the regulation of anti-competitive practices, and the protection of human rights and workers' rights - including protections necessary to fulfill a government's obligations under ILO conventions and international human rights instruments - must not be subject to challenge under and agreement.
A trade agreement should rely on government-to-government rather than investor-to-state dispute resolution. If a private right of action for investors is created, it should at a minimum require exhaustion of domestic remedies and an opportunity for home states to intervene in disputes involving their investors. All dispute resolution mechanisms should be fully transparent and accessible to interested members of the public.
ServicesNAFTA and WTO rules restrict the ability of governments to regulate services - even public services. The U.S. company UPS is arguing that Canada's public postal service violates NAFTA, because governmental support for the postal service is an unfair subsidy. Increased pressure to deregulate and privatize services could raise the cost and reduce the quality of such basic services as health care and education. Any agreement with Central America should contain a broad, explicit carve-out for important public services, including those provided on a commercial basis or in competition with private providers. There should be no pressure on governments to open their pension systems or other public services to more private competition, or to lock in private competition in these sectors. Services rules should be negotiated sector by sector, and should preserve the ability of national, state and local governments to regulate private service providers in the public interest.
ProcurementNAFTA and WTO rules on procurement restrict the public policy aims that may be met through procurement policies at the federal, state, and local level. For example, in the Executive Order banning the federal purchase of goods made by forced child labor, signatories to these procurement agreements were specifically exempted from the order out of fear that the order would violate trade rules. The U.S. should focus on revising - not extending - this flawed model. Trade agreements should not constrain those procurement rules that serve important public policy aims such as environmental protection, local economic development and social justice, and respect for human rights and workers' rights. Governments have a right to invest their tax money in local firms and to use procurement policy to pursue broader social goals.
Intellectual Property Rights An agreement with Central America should allow all parties to take full advantage of the flexibility available under WTO Trade Related Agreement on Intellectual Property Rights (TRIPs) to compel the licensing of life-saving pharmaceuticals in a public health crisis. Any agreement, rather than constraining this flexibility, should clarify the TRIPs exception to ensure that public health crises are considered national emergencies within the agreement, and to ensure that if a government uses this exception it will not be subject to sanctions under the free trade agreement or any other trade law.
E-Commerce If the CAFTA commits the Parties to refrain from "imposing unnecessary barriers on electronic transmissions, including digitized products," as does the Jordan FTA, we believe it is important that the agreement clarify that such a clause would not be a barrier to any future state initiatives to tax goods sold over the Internet or other non-discriminatory tax measures. We are aware of the ample precedent in international trade law for exempting non-discriminatory taxation schemes from commercial agreements. We are also aware that there is a common understanding among trading partners that most destination-based consumption taxes are not viewed as barriers to trade. However, we believe it is important to make this understanding explicit under any agreement with Central America. We therefore request that the agreement explicitly exempt existing state sales tax regimes and non-discriminatory taxation more generally from any new disciplines on e-commerce.
DemocracyThe FTAA negotiators made a significant step forward before the 2000 Summit of the Americas in Quebec and again this year in Quito by releasing draft texts of the FTAA. We hope for the same kind of transparency in the negotiations with Central America. Citizens in the region have a right to know not only what the draft CAFTA proposals are, but which ones their government is supporting and opposing. Once the agreement is concluded, dispute resolution measures should also be open to the pubic. A transparent, inclusive, and democratic process, both for the negotiation of the agreement and for its eventual implementation, is essential to ensure the legitimacy of the process.
Thank you for this opportunity to submit our views on the proposed free trade agreement with Central America. We believe that the agreement can only succeed if it takes into account the needs of workers and their families in the region, and includes the reforms we have presented here today.
posted by jikhano at 3:12 PM
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