Updated August 23, 2019March 2, 2020
Labor Enforcement Issues in U.S. FTAs
Background
Labor provisions in free trade agreements (FTAs)—both in
the U.S. and globally—were first included in the North
American Agreement on Labor Cooperation (NAALC), the
side agreement to the 1994 North American Free Trade
Agreement (NAFTA). Since then, provisions have evolved
from commitments not just to enforce a country’s own
domestic labor laws, but also to adopt and enforce core
principles of the International Labor Organization (ILO).
As mandatedrequested by Congress through trade promotion
authority (TPA), recent U.S. FTAs also subject labor
chapters to the same dispute settlement (DS) procedures as all
other obligations, although with minor modifications. Some
Members of Congress view strong labor . Some Members view strong worker rights
provisions in U.S.
FTAs as an important issue and they
have raised concerns
over FTA partner compliance with
labor commitments and
the U.S. record of enforcement.
These issues were part of
the debate over the proposed Trans-Pacific
Partnership Partnership
(TPP) and in the NAFTA renegotiation, signed
in 2018renegotiation of NAFTA as the U.S.-Mexico-Canada Agreement (USMCA), for which Congress
passed implementing legislation in early 2020.
Labor standards are not part of World Trade Organization
(WTO) rules; in 1996, members reaffirmed the ILO as the
competent body to deal with labor issues, while denouncing
the “use of labor standards for protectionist purposes.”
Limited progress at the WTO led several countries to
include labor commitments in FTAs. The United States and
others also include worker rights as and in the eligibility criteria for
developing countries to receive
criteria of unilateral trade preferences programs.
U.S. FTAs have set precedents both in terms of the scope
and enforceability of labor provisions. An ILO report found
as of 2016, 77 out of 267 FTAs globally included labor
provisions, compared to 21 in 2005. Unlike U.S. practice,
the majority of agreements do not subject labor provisions
to dispute settlement. Most provide a framework for
dialogue, capacity building, and monitoring, rather than link
violations to economic consequences, such as trade
sanctions. In cases where dispute settlement is applicable,
such mechanisms have been rarely invoked; countries
largely aim to solve disputes via cooperative consultations.
Enforcement Mechanisms in U.S. FTAs
The U.S. has brought complaints over FTA partners’
compliance with labor commitments under five FTAs listed
below. Among these agreements, provisions subject to
dispute resolution procedures and remedies may differ:
NAALC provisions were subject to dispute settlement
procedures separate from those applicable to the main
NAFTA. NAALC aimed to settle labor complaints
primarily via dialogue and consultations. If
consultations were unable to resolve a complaint, certain
issues could be referred to other mechanisms. The full
spectrum of dispute procedures, including an arbitral
panel and dispute procedures, including an arbitral panel and
limited monetary penalties, applies to allegations
applied to limited
set of allegations/obligations involving: a “persistent
pattern of failure” to enforce
“occupational safety and
health, child labor or minimum
wage technical labor
standards,” where the matter is
trade-related and
covered by mutually recognized labor
laws. Other
issues, such as freedom of association and
right to organize are the right to
organize, were limited to ministerial consultations.
Dominican Republic-Central America FTA
(CAFTA-DR) and U.S.-Bahrain FTA labor chapters
include one provision subject to enforcement—a party
“shall not fail to effectively enforce its labor laws,
through a sustained or recurring course of action or
inaction, in a manner affecting trade.” Procedures
related to labor disputes may include limits on monetary
penalties. Parties may
impose monetary penalties in limited circumstances.
Creation of a labor cooperation mechanism, in
addition addition
to a capacity building mechanism and labor
affairs affairs
council in the case of CAFTA-DR, were intended
to to
oversee review and implementation of the labor
obligations. CAFTA-DR was the first U.S. FTA to
include measures in support of labor capacity building.
U.S.-Peru, U.S.-Colombia FTA and USMCA labor
labor chapters reflect
provisions required by the “May 10th
Agreement,” a
2007 bipartisan deal between
congressional leadership
and the Bush Administration.
The agreement called for:
(1) an additional enforceable
commitment that FTA
parties adopt and maintain core
labor principles of the
1998 ILO Declaration; and (2) the
same dispute
settlement procedures and remedies,
including recourse
to trade sanctions, for FTA labor
provisions provisions, as applied
to other obligations. A party
alleging alleging a violation of the
provision on ILO commitments
must demonstrate that
failure to adopt or maintain ILO
principles has been “in
a manner affecting trade or
investment.” USMCA, which revised the NAALC, also
reflects updated negotiating objectives on labor within
TPA-2015 and covers new commitments. For Colombia,
a labor action plan was also negotiated, requiring that
certain commitments be met prior to FTA ratification.
Enforcement Mechanisms in U.S. FTAs
Summary of U.S. Labor Disputes
Complaints over U.S. FTA partners’ compliance with labor
commitments have been brought under five FTAs. Among
these agreements, provisions subject to dispute resolution
procedures, and remedies may differ:
NAALC contains 11 “principles” on worker rights,
subject to separate dispute settlement procedures from
the main NAFTA. NAALC aims to settle complaints
regarding labor enforcement primarily via dialogue and
consultations, through the national administrative
offices and at the ministerial level. If consultations are
unable to resolve a complaint, certain issues can be
referred to other mechanisms. The full spectrum of
investment.” Colombia
agreed in a separate bilateral labor action plan to meet
certain commitments prior to FTA ratification.
Some expect future labor complaints under the USMCA,
which revised NAFTA to include a labor chapter in the
main text, and goes further than the Peru and Colombia
FTAs, reflecting updated negotiating objectives within the
latest version of TPA (enacted in 2015), by imposing
additional substantive commitments and creating a new
enforcement mechanism for facility-specific violations of
labor rights (see below). Notably, USMCA shifts the
burden of proof by creating a rebuttable presumption that
an alleged violation of labor commitments affects trade and
investment, unless demonstrated otherwise.
Summary of U.S. Labor Disputes
The Office of Trade and Labor Affairs (OTLA) within the
U.S. Department of Labor receives and reviews complaints
(termed “submissions”) of alleged violations of FTA labor
commitments. The DOL consults and coordinates with the
U.S. Trade Representative (USTR) and State Department
on labor enforcement. Per OTLA, a submission must “raise
issues relevant to the labor provisions in the NAALC or
FTA and illustrate a country’s failure to comply with its
https://crsreports.congress.gov
Labor Enforcement Issues in U.S. FTAs
obligations.” If the submission is accepted, OTLA does a
review and issues a public report onwith its findings, with and
recommendations to the FTA partner. OTLA may also
recommend further actions, including that the U.S. request
https://crsreports.congress.gov
Labor Enforcement Issues in U.S. FTAs
bilateral consultations—if these are unsuccessful, dispute
settlement may be invoked in certain cases.
Under NAALC, OTLA received more than 20 submissions.
It has accepted and issued reviews for 13, with one under
review; all involved Mexico (Table 1). Among U.S. FTAs
with labor chapters, the OTLA has issued seven reviews
involving six countries. The Guatemala dispute involved
the led to the
first formal consultations requested by the United
States,
although submissions under other U.S. FTAs have
resulted resulted
in ministerial or informal consultations. It is also
the only
case to have proceeded through dispute settlement.
Table 1. Labor submissions reviewed by OTLA
Country
Mexico
Filed
19942015
Petitions
13
Guatemala
Peru
2008
2010;
2015
2011
1
2
1
Status
* 1 case under review;
* 11 reports issued; 8
ministerial agreements
* Panel decision in 2017
* Reports issued in 2012
and 2016
* Consultations in 2014
Dominican
Republic
Honduras
2011
1
* Report issued in 2013
2012
1
Colombia
2016
1
* Monitoring and action
plan adopted in 2015
* Report issued and
consultations with contact
points held in 2017
Bahrain
Source: U.S. Department of Labor.
Guatemala Labor Dispute
In April 2008, the AFL-CIO and six Guatemalan labor
unions filed a complaint under CAFTA-DR alleging that
Guatemala failed to
effectively enforce its labor laws with
respect to freedom of
association, rights to organize and
bargain collectively, and
acceptable conditions of work.
The OTLA report in January
2009 raised several concerns
and recommendations. The
United StatesUSTR and DOL initiated
consultations in 2010, amid concerns
Guatemala had “not
undertaken effective steps to correct
systemic failures” in
labor law enforcement, and then in late
2011, requested
establishment of an arbitral panel. It wasPanel proceedings were
suspended while the two sides negotiated an 18-point labor
enforcement plan in April 2013. After Guatemala allegedly
failed to implement the plan, the panel resumed in 2014 and
issued its decision in June 2017. It found that, while
Guatemala failed to enforce certain laws, the evidence did
not prove it was “sustained or recurring” and “in a manner
affecting trade,” and thus did not violate FTA provisions.
Issues for Congress
The enforcement of labor provisions has been scrutinized
by some Members of Congress and labor groups as “slow
and cumbersome,” and relying “on the political will of
governments.” They call for greater monitoring and
oversight of labor practices. Other analysts argue that the
debate and scrutiny over labor provisions in FTAs, coupled
with robust consultative mechanisms, have led to greater
cooperation and helped countries to improve standards.
U.S. FTA Partner Compliance
The effectiveness of FTAs in raising labor standards, the
extent to which countries comply with labor provisions, and
, and the most effective
approaches to improve compliance are
widely debated issues. In a
2014 review, the Government
Accountability OfficeGAO concluded that U.S. FTA partners
had taken several steps to improve worker rights pursuant
to FTA obligations; at the same time, concerns were raised
over gaps in protections, attributed to lack of enforcement
capacity and limited public awareness of petition processes.
Other observers point to the success of FTAs in creating
new avenues for cooperation on trade-related labor issues.
More broadly, some question whether FTAs are appropriate
or the most effective vehicles for addressing the crosscutting issue of worker rights. Most experts agree technical
assistance and capacity building are critical tools. Among
U.S. agencies providing trade capacity building, an
estimated 209% of funding went to labor issuestrade-related labor issues
in FY2018; this compared to a 20% share in FY2017.
U.S. Track Record of Enforcement
Some U.S. stakeholders contest the outcome of the dispute
with Guatemala and question whether FTA dispute
provisions require reforms. Critics view the number of
petitions accepted for review, review delays, and only one
case processed through dispute settlement, as shortcomings
in U.S. practice. Other experts view the first labor dispute
as an important precedent and evidence that trade-related
labor issues are taken seriously by the U.S. government.
Labor Chapters in U.S. FTAs
TPP: A New Template? TPP was widely viewed as
setting new precedents for U.S. FTA labor chapters. To
address concerns over labor standards and enforcement,
the United States had negotiated three bilateral labor
plans, subject to greater monitoring and dispute
settlement for the first time. While the United States is
no longer a TPP party, USTR indicated TPP may serve
as a baseline for future FTAs, including the USMCA.
USMCA. Strong labor provisions are seen as a key
factor for securing Democratic congressional support for
the proposed USMCA. USMCA incorporates a labor
chapter into the main body of the agreement, which
reflects key components of TPP and also covers new
areas. The chapter includes footnotes clarifying some
FTA language that related to the U.S. loss against
Guatemala. It has an annex committing Mexico to take
legislative actions to protect the right to collective
bargaining. Some Members have called for major
improvements to labor practices in Mexico, as well as
stronger enforcement mechanisms. Some advocate fixes
to USMCA dispute settlement, which effectively allows
a disputing party to block formation of a panel via lack
of consensus over panelist appointments. USTR is
reportedly working on a supplemental “rapid-response”
enforcement plan to address congressional concerns.
U.S.-Colombia FTA up Next? U.S. and Colombian
officials met in 2018 to review FTA implementation,
with a view to potentially “modernize” the agreement.
Worker rights and unresolved issues from the OTLA
report were discussed. In August 2019, U.S. officials
met in Colombia to assess labor compliance.
For more, see CRS In Focus IF10046, Worker Rights
Provisions in Free Trade Agreements (FTAs) and In Focus
IF10645, Dispute Settlement in U.S. Trade Agreements.
Cathleen D. Cimino-Isaacs, Analyst in International Trade
and Finance
https://crsreports.congress.gov
Labor Enforcement Issues in U.S. FTAs
IF10972FTAs
TPP. The proposed TPP was widely viewed as setting
precedents for FTA labor chapters, and largely reflected
U.S. approaches. While the United States is no longer a
party, USTR indicated TPP was a baseline for USMCA.
USMCA. USMCA goes beyond TPP labor provisions, and
some question whether it will serve as a new U.S. FTA
template. Strong labor provisions were a key factor for
securing Democratic congressional support, amid calls for
improvements to Mexican labor practices and enforcement.
Several USMCA provisions were motivated by enhancing
enforcement. An annex commits Mexico to take specific
legislative actions to protect the right to collective
bargaining. The labor chapter includes new text clarifying
language that related to the U.S. loss against Guatemala.
Changes to USMCA DS provisions also aim to prevent
panel blocking in dispute cases. Further, a new “rapid
response” mechanism provides for an independent panel
investigation of denial of certain labor rights at “covered
facilities,” with the potential to block imports. Some
observers expect these changes could spur new complaints,
but questions remain on the mechanism’s implementation.
Other FTAs. U.S. and Colombian officials met in 2018 and
2019 to review implementation and potentially “modernize”
the FTA. Labor compliance was a top issue discussed.
For more, see CRS In Focus IF10046, Worker Rights
Issues for Congress
Some Members of Congress and labor groups have
scrutinized enforcement of labor provisions as “slow and
cumbersome,” and relying “on the political will of
governments.” They call for more monitoring and oversight
of labor practices. Other analysts argue that the debate and
scrutiny over labor provisions in FTAs, coupled with robust
consultative mechanisms, have led to greater cooperation
and helped countries to improve standards.
Provisions in Free Trade Agreements (FTAs) and CRS
In Focus IF10645, Dispute Settlement in the WTO and
U.S. Trade Agreements, by Ian F. Fergusson.
Cathleen D. Cimino-Isaacs, Analyst in International Trade
and Finance
https://crsreports.congress.gov
IF10972
Labor Enforcement Issues in U.S. FTAs
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.
https://crsreports.congress.gov | IF10972 · VERSION 67 · UPDATED