Legalizing Transnational Activism
The Struggle to Gain Social Change from NAFTA's Citizen Petitions
Legalizing Transnational Activism
The Struggle to Gain Social Change from NAFTA's Citizen Petitions
“Legalizing Transnational Activism is an invaluable contribution to our knowledge of NAFTA and social policy. It presents important new findings based on original research and uses them to advance the broader debate on the social impact of NAFTA. The work will interest anyone seeking to understand transnational legal issues, especially in the area of labor and the environment.”
- Table of Contents
- Sample Chapters
“Legalizing Transnational Activism is an invaluable contribution to our knowledge of NAFTA and social policy. It presents important new findings based on original research and uses them to advance the broader debate on the social impact of NAFTA. The work will interest anyone seeking to understand transnational legal issues, especially in the area of labor and the environment.”
“A welcome contribution to the study of NAFTA, providing original insights into the operation and political significance of the agreement’s ‘side accords’ on labor and the environment, and a rich empirical appreciation of how transnational social justice actors have struggled to leverage these controversial institutions. Graubart’s ability to weave together the legal and the political, and the domestic and the transnational, brings to life a story of contentious politics that will be of keen interest to political scientists, legal scholars, and engaged citizens trying to understand NAFTA beyond the polemics.”
“Within the pages of this densely argued and richly documented book, Graubart has effectively challenged both international lawyers and social movement scholars (not to mention political scientists) to take more seriously the incremental effects of soft-law on state legal autonomy in the hard times of international globalization. That is an achievement that social movement scholars who doubt the importance of the political process in the emergence and outcomes of contentious politics will need to contend with.”
“This short, provocative study is a valuable contribution to the literatures on the North American Free Trade Agreement (NAFTA), labor and environmental law, and transnational activism.”
Jonathan Graubart is Associate Professor of Political Science at San Diego State University.
Preface and Acknowledgments
Introduction: Transnational Activism, Soft Law, and Nafta’s Social Model
1. Legalizing Politics
2. Politicizing Law
3. The Rise and Decline of Nafta’s Labor Petitions
4. The Importance of Institutional Support: Nafta’s Environmental-Petition Mechanism
Conclusion: Lessons Learned
Transnational Activism, Soft Law, and Nafta’s Social Model
Given that the two most defining global events of the past decade are the 9/11 terror attacks of Al Qaeda upon the United States and the illegal U.S. war on Iraq, it is easy to forget the intense global debates at the end of the twentieth century over economic globalization. The most vivid expression of popular discontent with neoliberal-oriented economic integration took place at the “Battle in Seattle” during the Ministerial Conference of the World Trade Organization (WTO) in December 1999 (Kaldor 2000). There, a wide global coalition of labor unions, environmentalists, and community activists protested the lack of transparency and accountability in WTO governance and the inadequate attention to the negative social ramifications of increased global economic interdependency. These demonstrations confirmed the existence of a profound global controversy. As the lead story in Business Week put it in November 2000, “it would be a grave mistake to dismiss the uproar witnessed in the past few years in Seattle, Washington D.C., and Prague. Many of the radicals leading the protests may be on the political fringe. But they have helped to kick-start a profound rethinking about globalization among governments, mainstream economists, and corporations that, until recently, was carried on mostly in obscure think tanks (Engardio and Belton 2000, 74).
It may be tempting to conclude that globalization struggles have been eclipsed by renewed fears of nonstate terrorism, on the one hand, and aggressive U.S. interventionism, on the other, as reflected in National Security Strategy Document of 2002 (NSS 2002) and the subsequent U.S. war on Iraq (Gupta and Graubart 2004; Chomsky 2006). In fact, economic globalization remains a central global policy concern. In Latin America, for example, a number of populist-leftist governments have come to power based in large part on opposition to investment and trade liberalization. Even NSS 2002, which is best known for its support of “preemptive” war and the corresponding denigration of conflicting international legal norms, lists the promotion of global economic liberalization as one of the essential U.S. foreign policy goals. At the global level, the WTO and regional trade-investment agreements that formed in the 1990s continue to be the focal point of debate over the direction of global economic governance. As in Seattle, there is a central divide between those who espouse a neoliberal, business-friendly vision and those who prioritize social justice values, like community control over economic policies, ecological health, and adequate wages and labor standards.
But while the debates remain lively, the neoliberal side has the upper hand at the global level. Despite repeated protests by social activists and some politicians, the WTO has barely incorporated social values into its mandate. The major impediments have been a combination of ideological aversion, lack of elite support, and the resistance from many governments of developing countries to linking social provisions to trade agreements (O’Brien et al. 2000). The social justice camp, however, has enjoyed some success at the regional level by way of the three most developed and institutionalized regional trade-investment agreements, the European Union (EU), the South American Common Market (Mercosur), and Nafta. Although they feature extensive and deep market liberalization, they also, to varying degrees, contain social provisions and accompanying institutional mechanisms.
To gain a more comprehensive understanding of the status of social justice values in contemporary global economic governance, we are well advised to assess the actual significance of the social provisions found in the leading regional trade-investment agreements. To date, the only one of these agreements whose social provisions have received extensive study is the EU (e.g., Leibfried and Pierson 1995; Kleinman 2002). The EU’s social model is the most friendly to social justice values. Unfortunately for social activists, the EU’s extensive institutionalization across a range of issue areas makes it a model unlikely to be implemented elsewhere. Hence, the EU’s social model does not reflect the current global status of social values in trade-investment agreements.
A far better model for illustrating the current status of social justice values in trade investment is that found in Nafta and its two parallel accords, the North American Agreement on Labor Cooperation (NAALC) and the North American Agreement on Environmental Cooperation (NAAEC). In effect since 1994, Nafta and the parallel accords reflect the relative global strengths of a probusiness neoliberal ideology, on the one hand, and broader social values, on the other. Nafta privileges multinational trade and investment interests. In response to popular discontent at Nafta’s neoliberal orientation, the North American governments added the parallel social accords partially to address the concerns of social activists.
NAALC and NAAEC combine information gathering and public consultations with a set of quasi-judicial citizen-petition mechanisms. These mechanisms are the most prominent and valuable features of the parallel accords. They enable individuals and nongovernmental organizations (NGOs) to make quasi-legal allegations of a member government’s failure to uphold agreed-upon labor or environmental standards. A specially created administrative body reviews the petition, conducts an investigation, and issues findings and recommendations. Owing to political compromise, the findings are nonbinding, making the petition process a form of “soft law.” As argued below, such limitations are not a distinct North American phenomenon but reflect general resistance on the part of most governments to incorporate hard social provisions. Thus Nafta’s parallel accords present an innovative trade-linked social model that is acceptable to a range of governments. Accordingly, examination of their significance in practice offers a valuable global public policy window into the prospects for interjecting social values into trade-investment governance.
A number of scholars and activists have dismissed the significance of the citizen-petition mechanisms because of their soft-law nature (e.g., Anderson, Cavanagh, and Ranney et al. 1996; Economic Policy Institute et al. 1997; Wallach and Naiman 1998; Fox 2002). In practice, however, North American labor and environmental activists have contradicted such dismissals through savvy selection and engagement of the citizen-petition process. The most successful petitions have extracted concessions from local and state governments and from private companies, including the following:
The state of Washington increased its staffing level in enforcing health and safety regulations of migrant workers. Also, Stemilt, a large warehouse packing company, agreed to card signing in place of formal elections to determine union certification, enabling the Teamsters to gain plant representation.
The Canadian government created a federal water-use plan with sanctioning authority to reduce damage to local fish habitat caused by hydroelectric facilities.
The Mexican government launched a new informational campaign in the maquiladora zone to educate workers on laws prohibiting discrimination against pregnant workers. Also, several U.S. companies agreed to discontinue pregnancy screening.
To be sure, petitioners have not always succeeded, and the NAALC mechanism has lost some of its promise since 2000. But the mechanisms have been much more politically valuable than anticipated and thus merit far more attention than they have received to date.
This study is the first book-length review of Nafta’s citizen-petition mechanisms. I focus on the empirical record of North American activists in using them. In particular, I have developed an original framework to explain why, how, and under what circumstances citizen-petition mechanisms have yielded political value. I synthesize insights from studies on international law, legal mobilization (i.e., litigation used to advance broader political reform), and transnational activism. With respect to the “why,” this book shows that activists have filed citizen petitions to advance ongoing domestic political causes, such as union-organizing drives or campaigns to preserve local habitats. In short, activists have engaged the petition process to legalize the political dispute. Legalization commits the target government to engage in a legal dialogue initiated by the activists whereby the government must articulate a legal defense of its behavior before an outside review body. Through this process legalization gains more attention and status for the petitioners’ political cause.
Moving to the “how,” I show how petitioners combine legal and political strategies to advance their petitions. Such an integrated strategy makes sense given the soft-law nature of the petition process. In order to prod a change in behavior from the government, petitioners politicize the legal process by employing political means to promote the legal action and pressure compliance. Taking the legal and political together, my framework finds that activists are most successful in the petition process when they secure a favorable finding from the quasi-judicial body and implement a complementary and sophisticated political campaign.
Through applying this conceptual framework to a close empirical examination of Nafta’s citizen petitions, this book not only sheds light on the real status of social values in today’s largely neoliberal world of trade-investment governance but also advances our understanding of a prominent but little understood feature of contemporary global governance: the transnational quasi-judicial mechanism. In this way I reconceptualize the changing roles of international law and transnational activism in shaping global and domestic political trends in an increasingly global era.
Background of Nafta’s Citizen-Petition Mechanisms
Negotiations over Nafta began in the early 1990s. All three North American governments, along with influential commercial actors, supported an accord that would expand economic liberalization and integration. Initially negotiators focused strictly on commercial issues. As negotiations gained public attention, however, labor, environmental, and other activists warned of the negative impact a neoliberal-oriented Nafta would have on social values in the region. Such groups pressured President George H. W. Bush to address labor and environmental issues because he needed fast-track approval from Congress (Cameron and Tomlin 2000). Bush agreed to support a program of assistance for dislocated workers and an environmental plan for the Mexican-U.S. border and to include international environmental treaties in the main text of Nafta (Cameron and Tomlin 2000).
The 1992 U.S. presidential campaign increased the status of labor and environmental issues. Bill Clinton, running as a “New Democrat,” sought both to show his support for markets and liberalized trade and to accommodate the concerns of core Democratic Party constituencies about job displacement, labor rights, and environmental standards. At a campaign speech in Raleigh, North Carolina, he supported Nafta, provided the United States negotiated additional agreements on labor and the environment, as well as safeguards against import surges (Cameron and Tomlin 2000). By the end of 1992 the governments had completed Nafta negotiations and Clinton was elected president. Clinton agreed not to renegotiate Nafta and pushed the reluctant presidents of Mexico and Canada to negotiate parallel accords on labor and the environment.
The Clinton team initially bargained for moderately strong accords on labor and environmental provisions. Clinton wanted to gain the support of enough Democrats in the House while not losing Republican votes or antagonizing his Wall Street supporters, who supported a Nafta free of social provisions (Cameron and Tomlin 2000). He supported the creation of an independent regional body that would research and disseminate information on labor and environmental standards and practices in North America, promote the advancement of such standards, and investigate citizens’ complaints of labor and environmental violations. Clinton also proposed a dispute-settlement mechanism to hear state-to-state complaints of violations and issue sanctions for persistent violations. The Mexican and Canadian governments opposed the U.S. proposals for encroaching too heavily upon state sovereignty. They sought a weaker institutional apparatus that lacked enforcement provisions or sanctions, and separate secretariats under the authority of each member government rather than under a strong regional body (Grayson 1995).
The governments agreed that NAAEC and NAALC would be overseen, respectively, by a Council of Environmental Ministers and a Council of Labor Ministers. Both accords list a broad set of substantive principles on labor or environmental standards that each member state pledges to promote, and establish secretariats to implement the agreements. As a concession to the Canadian and Mexican governments, the accords avoid regional standards. Rather, they bring enforcement of domestic labor and environmental standards to regional scrutiny.
Beyond these overall similarities, the institutional implementation is quite distinct between the two bodies. In NAAEC, the secretariat is autonomous and has wide authority. It conducts extensive research, disseminates information, and reviews petitions from citizens or NGOs that allege failures by a member government to enforce its domestic environmental laws. A distinctive, innovative feature is NAAEC’s creation of an independent Joint Public Advisory Committee (JPAC), made up of fifteen environmental, academic, and business representatives. While each government appoints five members, the JPAC members act in their individual capacity. JPAC’s mission is to ensure broad citizen input into the process and to facilitate citizen communication with the secretariat and the Council of Environmental Ministers. There is also a state-to state dispute mechanism, whereby governments can complain of noncompliance by another government before an ad hoc arbitration panel. Such panels are authorized to impose fines on parties found to engage in a “persistent pattern of failure to effectively enforce an environmental law,” but only after a series of efforts to reach an “action plan” have failed.
NAALC creates a much thinner institutional apparatus. Its secretariat has far fewer resources than its NAAEC counterpart and is restricted to gathering and publishing information on regional labor trends. It has no equivalent to JPAC. Investigatory authority is reserved for separate National Administrative Offices (NAOs). Each NAO is a governmental body established within the labor department of the government to which it belongs. Each reviews citizen petitions of alleged failure by another member government to enforce its own labor laws. NAALC also has a state-to-state dispute mechanism for “trade-related” persistent failures to enforce domestic labor laws. Like the environmental accord, fines can be imposed only after efforts to reach an action plan have failed. Issues subject to sanctions are limited to health and safety, minimum wages, and child labor.
The differences in the institutional structures of NAALC and NAAEC stem from domestic political concerns of the U.S. and Mexican governments in the early 1990s. The Clinton administration pushed harder for a strong regional secretariat in the environmental accord because it had more common ground with the environmental movement than with labor unions. Several environmental groups, including the World Wildlife Fund and the Environmental Defense Fund, were amenable to supporting a Nafta that accommodated environmental concerns (Cameron and Tomlin 2000; Dreiling 2001). By contrast, labor movements were strongly opposed to Nafta and unlikely to be won over short of strong concessions that would never be accepted by Canada, Mexico, or many Republicans in the House of Representatives (Cameron and Tomlin 2000). Accordingly, Clinton was more receptive to environmental concerns, and gave environmental groups significant input into the negotiations. Upset with the process, the AFL-CIO declined to participate in the negotiations (Grayson 1995).
Mexico’s long-governing Institutional Revolutionary Party (PRI) insisted upon the separate government-controlled review bodies. It feared that an autonomous regional body with broad investigatory authority would be more likely to interfere with the PRI’s long-standing practice of institutionalizing preferential treatment for a federation of allied labor unions, led by the Confederation of Mexican Workers (CTM) (Cameron and Tomlin 2000; see Middlebrook 1995). For similar reasons, the PRI demanded that union issues, such as rights of association and collective bargaining, be exempt from the state-to-state dispute-resolution process.
Although the institutional differences have proved significant, as shown in Chapters 3 and 4, there are nevertheless striking similarities between NAAEC and NAALC. Neither, for example, gives much weight to sanctions for noncompliance. Although sanctions are envisioned in each agreement through the state-to-state dispute mechanism, the procedural obstacles in place make them a remote option. This made it possible for Mexico to give ground on its initial absolute opposition to including sanctions. As one Mexican negotiator happily observed, “The mechanisms for sanctions are extremely long—a country has to be looking for sanctions to be imposed” (Cameron and Tomlin 2000, 200). To date, no government has attempted to invoke the sanction process in either accord. What stand out in both accords are the soft-law citizen-petition mechanisms.
The Global Public Policy Significance of Nafta’s Social Model
A number of activists and scholars regard Nafta’s social accords as nothing more than a symbolic gesture by President Clinton to secure congressional approval of Nafta’s implementing legislation. They consider Nafta’s social model too undeveloped to merit serious analysis (Anderson, Cavanagh, and Ranney 1996; Economic Policy Institute et al. 1997). In this view, the social accords fail to mitigate the neoliberal bias of the core treaty, which not only liberalizes services and investment and protects intellectual property rights, but also grants foreign investors direct access to binding transnational commercial panels to protect their rights (Kibel 2001).
This study challenges the conventional neglect of Nafta’s social model and argues that the global public policy relevance for understanding the status of social values in trade-investment agreements is pronounced. Most dismissals of Nafta’s social accords suffer from an unrealistic ideal that fails to factor in the broader neoliberal trends taking place in the governance of global and regional trade investment. To redress this shortcoming, this section evaluates Nafta’s social model according to actual global trends in contemporary trade governance. Through a review of the relative strengths of neoliberal and social justice forces, I show that Nafta’s social model is not merely an idiosyncratic creature of domestic politics but is institutionally quite advanced and is the most viable of the existing trade-linked social regimes.
The Emergence of Neoliberalism as the Dominant Norm in Global Trade Governance
The preferential treatment Nafta gives to commercial interests over social values reflects an overall shift toward neoliberalism as the guiding vision of international trade governance. Neoliberalism promotes market-oriented, deregulatory economic policies and increased private economic activity across state borders. To appreciate neoliberalism’s popularity among influential policymakers, it is necessary to connect it to a set of dynamics known as globalization and the emergence of a powerful and assertive group of transnationally oriented private economic actors (Oman 1994; Held 1995).
Globalization conveys the notion of a qualitative deepening in cultural, political, and economic interconnections across state borders (Held 1995). Factors that further globalization include state policies, technological advancements in communication and travel across state borders, and the increased transnational activity of nonstate actors. Economic globalization refers to the rapid rise in the movement of goods, capital, and services across state borders and increasing transnationalization in the scope of activities conducted by private economic actors. Globalization has both top-down and bottom-up dimensions, which influence each other. From a top-down perspective, state policymakers effect closer interconnections by entering into new or strengthened international trade arrangements that facilitate economic interdependence. State policymakers have increasingly turned to more neoliberal visions of international trade that privilege greater economic activity across state borders over the social regulation of such activity.
Transnational private economic actors are a major bottom-up dimension of globalization. To be sure, multinational corporations have long exerted great influence. But in recent times technological and organizational improvements, coupled with greater global connections with companies and suppliers abroad, have enabled companies to internationalize their scope of production rather than simply operate plants in multiple states (Oman 1994; Busch and Milner 1994, 260). They have truly become transnational corporations (TNCs).
Transnational economic actors have significantly expanded their influence on state and global public policies. To begin with, they are immensely wealthy actors able to advance their positions before governments. The top TNCs earn more in sales revenue than the gross domestic product of more than a hundred countries (Cusimano, Hensman, and Rodrigues 2000, 268). Moreover, TNCs and financial actors have greater use of the exit option. Even if they are still tied to their home states, TNCs can readily shift parts of their production abroad, especially to nearby states (Oman 1994, 11–24). Knowing that states rely upon them for needed investment and finance, TNCs and international financial actors have been able to bargain, especially with developing states, from a strong negotiating position (Stopford and Strange 1991; Oman 1994; Milner and Keohane 1996). Because of their broader scope, transnational economic actors lobby not just for specific tax breaks, subsidies, or exemptions but for neoliberal policies, such as decreased social regulation and the liberalization of foreign investment.
The combined changes pushed by neoliberal-oriented policymakers and prominent transnational private economic actors explain the fundamental restructuring of international trade governance over the past decade. While the old trading regime, focused around the General Agreement on Trade and Tariffs (GATT), enjoyed a great deal of success, transnational economic actors and governing elites came to view it as outdated, by the late 1980s, for a more globally integrated economy (Kahler 1995). GATT had, after all, taken shape in an era when international economic activity was modest and accounted for little of most states’ overall GNP (Eichengreen and Kenen 1994). Its focus was on trade in manufactured goods and largely excluded foreign investment, services, and “behind-the-border” domestic policies, like subsidies to industries and regulatory policies (Kahler 1995).
The contemporary international trade and investment regime took root at the end of the 1980s. Its key components have been liberalization of foreign investment and services, enhanced intellectual property protection, reduction of subsidies, and implementation of more transparent and uniformly applied economic regulatory policies (Kahler 1995). At the global level, this agenda has been furthered by new agreements on trade in services (GATS), intellectual property rights (TRIPS), and trade-related investment measures (TRIMS), and the founding of a powerful new trade body, the World Trade Organization.
The most extensive trade governance has emerged at the regional level, led by the EU, Nafta, and Mercosur. Although quite distinct, all three include much more extensive liberalization on investment, services, and behind-the-border issues than what is found at the WTO level (Mytelka 1994; Kahler 1995). In addition, each has been driven primarily by a desire to make it easier for transnational businesses to operate throughout the region (Kahler 1995; Taylor-Gooby 2004; Malamud 2005).
Contesting Neoliberal Trade Governance with Social Justice Norms
The emergence of a predominant neoliberal norm in the era of globalization has provoked a countermovement that seeks to make social values preeminent over market interests (Gill 1991; Cox 1996). The negotiation of comprehensive global and regional trade agreements has provided a major spark. These agreements have elicited great public attention and prompted labor organizers, environmentalists, and other social activists to confront the challenges of neoliberal economic globalization (Cook 1997; Kaldor 2000; Ayres 2002). To varying degrees, northern and southern activists have campaigned against major multilateral trade-investment initiatives (O’Brien et al. 2000). Each set of activists shares a goal of re-embedding international trade governance within broader social values, such as equality, cultural diversity, and community control (Broad 2002).
Although this countermovement has made inroads in influencing public policy discussion of global and regional trade governance, its influence remains considerably weaker than pro-neoliberal constituencies. The latter, such as TNCs and financial investors, possess many more resources for lobbying governments and promoting their agenda in influential media like the New York Times and Financial Times. Although social activists can raise a compelling alternative vision of equity and self-governance, they have far fewer overall resources and less access to elite channels (especially true of southern activists). A related disadvantage is social activists’ smaller capacity to mobilize at the transnational level, recent advances notwithstanding. Only the best-endowed NGOs can devote full-time staff to international trade issues. Transnational economic actors, by contrast, have an immediate material stake in the outcome of international trade-investment governance and possess more sophisticated transnational organizing strategies.
An additional impediment for social activists is the North-South gap in perspectives and agenda, despite greater communication and collaboration in recent years. Although northern and southern social activists share an aversion to the neoliberal vision of enhanced international trade and investment, their specific concerns and goals differ considerably. Northerners have focused on the dangers to industrial and agricultural jobs and to domestic labor and environmental standards (O’Brien et al. 2000). Southern activists have been most concerned with privatization, cutbacks in state subsidies for essential services, harm to indigenous communities, depletion of natural resources, and the surrendering of autonomy to Western commercial interests (Anderson 2000; Khor 2000). Moreover, many southern activists are suspicious of the motives of northern opponents of trade agreements and fear that calls for workers’ rights and environmental standards reflect disguised protectionism (Khor 2000; O’Brien et al. 2000).
Meanwhile, groups opposed to the inclusion of a social agenda have been quite strong. Almost all southern governments oppose social linkages that require higher domestic standards in labor and environmental matters, while few if any Western governments strongly endorse such linkages (O’Brien et al. 2000). Transnational economic actors, by and large, are unreceptive to the inclusion of binding social standards in trade agreements (Manley and Lauredo 2004, 85).
Given the fragmentation and relative weakness of social justice constituencies, efforts to embed global and regional trade agreements in social values have had only modest success. All such agreements, even the EU, continue to be dominated by a neoliberal agenda. Nevertheless, social activists have succeeded in changing the terms of the debate and placing social issues firmly on the agenda of trade governance. To varying degrees, they have secured institutional support for social values.
The WTO and Social Issues: A Late Start and Minimal Progress
The effort to interject social values into the WTO-led global trade regime has been an uphill fight from the outset. Initially, state negotiators at the Uruguay round mostly ignored social issues. Meanwhile, labor movements, environmentalists, and human rights activists did not seriously address trade governance issues until the 1990s, long after transnational economic actors had taken an interest (O’Brien et al. 2000). As a result, member governments did not include labor rights or environmental provisions in the substantive scope of the WTO or in the revamped GATT treaty or accompanying agreements of GATS, TRIMS, and TRIPS. Advocates of labor and environmental standards also faced widespread opposition from southern governments, which have considered such social linkages as protectionist and as intolerable encroachments upon their sovereignty. They agreed only reluctantly to behind-the-border economic initiatives to gain greater access to industrialized markets and accommodate foreign investors (Kahler 1995). Nevertheless, as momentum has grown for moderating neoliberal-driven trade governance with a social agenda, labor and environmental issues have received greater attention at follow-up WTO ministerial summits (O’Brien et al. 2000).
Environmental issues entered the WTO agenda in the early 1990s. Helping them along was the momentum created by the 1992 UN “Earth Summit” and the backlash from a 1991 GATT dispute panel, which held that a U.S. ban on the import of Mexican tuna, to protect dolphins, was an unfair trade restriction (Kahler 1995; O’Brien et al. 2000). WTO negotiators set up a “working group on environmental measures and international trade” that culminated in the establishment of a separate WTO Committee on Trade and Environment (CTE) in 1994. The agenda of the CTE, a purely deliberative body, has in fact been focused on both the environment and trade. On the one hand, it incorporates input from environmentalists on making trade environmentally friendly. On the other hand, the CTE responds to the concerns of neoliberal constituencies by scrutinizing all international environmental agreements for any adverse impact on trade (O’Brien et al. 2000; Shaffer 2001). While the CTE has provided institutional access to environmental NGOs, then, it has by design not served as a vehicle for advancing an environmental agenda. Environmentalists have made little institutional headway elsewhere.
Labor movements have enjoyed even less success. Led by the International Confederation of Free Trade Unions (ICFTU), they made a concerted effort at the first WTO ministerial meeting in Singapore in 1996 to include core labor rights provisions. Although most independent labor unions from the South supported these efforts, the dominant push came from the West. The ICFTU secured support from a number of Western states, especially Norway, France, and the United States. Ultimately the labor rights advocates accomplished very little owing to the strong opposition of a coalition of southern states, business organizations (which substantially outnumbered labor delegates at Singapore), and some Western governments (O’Brien et al. 2000, 90–94). A number of southern activists also opposed the linkage efforts. They questioned the motives of Western labor movements and feared that any linkage would amount to further protectionism against developing countries (O’Brien et al. 2000; see Khor 2000). The end product was the inclusion in the Singapore ministerial declaration of a tentative statement of support for core international labor standards. More significantly, the statement identified the International Labor Organization (ILO) as the appropriate organization for addressing such issues and cautioned against “the use of labour standards for protectionist purposes.” No further progress has occurred in the ensuing years.
Overall, activists have attained no concrete social commitments at the WTO. They have, however, worked with disgruntled southern governments to hinder expansion of the WTO’s scope until a number of issues are satisfactorily addressed. Indeed, the dispute over social issues helped precipitate the breakdown of negotiations at the ministerial meeting in Seattle in 1999. On a related front, labor and environmental activists were instrumental in pressing member states of the Organization for Economic Cooperation and Development (OECD) to withdraw a proposed multilateral agreement on investment rights because it did not include labor and environmental provisions.
The impasse at the WTO is not surprising given its large and diverse membership in terms of geography, political, cultural, and economic traditions, and level of development. Such diversity limits the extent of governance acceptable to all. Serious tensions exist not just over social issues but over a number of behind-the-border issues. We should expect more progress at the regional level, which has seen more extensive behind-the-border international trade governance.
The EU and Social Issues: Developing a “Social Europe”
The most extensive social provisions are found in the EU; they are known collectively as “Social Europe.” The social agenda includes democracy, transparency, social equity, and citizen accessibility. The EU structure is readily accessible to nonstate actors. In fact, the European Commission has actively encouraged the direct involvement of business actors and social actors in the implementation of EU policies (Streeck and Schmitter 1991; Leibfried and Pierson 1995; Taylor-Gooby 2004). On labor standards, there are both purely aspirational provisions and binding provisions that can be invoked before the European Court of Justice (ECJ). The former is reflected by the Community Charter of Basic Social Rights for Workers, enacted in 1989. It encompasses core workers’ rights and broader economic and social rights, such as the right to social protection, a living wage, and vocational training. The Social Protocol and Agreement, adopted in 1992 as part of the Maastricht Treaty, enables the enacting of binding laws on workers’ rights. The EU has adopted binding labor provisions on health and safety, equal treatment of men and women, and worker consultation for companies operating in multiple EU countries and employing more than 150 people (Harvey, Collingsworth, and Athrey 1999). Because of sovereign sensitivities and the reluctance to extend Social Europe too far, union-derived rights such as collective bargaining, freedom of association, and the right to strike are specifically excluded from the scope of Europe-wide legislation (Rhodes 1995; Taylor-Gooby 2004).
Environmental issues have been addressed separately. Like the WTO’s CTE, the EU’s environmental provisions serve the dual goals of preventing economic expansion from hindering environmental protection and keeping domestic environmental legislation from impeding the common market. With respect to the latter goal, the treaty prohibits all domestic regulations that hinder trade (Article 30). But it allows exceptions for policies aimed at protecting people, animals, or plants (Article 36). The ECJ has extended the exceptions to encompass domestic policies that deal with “essential requirements,” including health and environmental protections (Esty and Geradin 1997, 558). Such measures, though, must be both nondiscriminatory and the least trade-restrictive means for accomplishing their objective. Moreover, the burden of proof is on the domestic government, although the ECJ has relaxed the rigor of this requirement by allowing precautionary motivations (Douma and Jacobs 1997). A more affirmative means of promoting environmental standards is the adoption of harmonized standards on certain environmental matters, such as vehicle emissions, chemical substances, and pesticides, that all member countries must follow. The degree of rigor and level of specificity of such standards has varied considerably. Some environmentalists complain that the standards merely reflect the lowest common denominator (Esty and Geradin 1997).
With the EU’s inclusion of central and eastern European states, there have been some significant developments in recent years. The EU has devoted greater institutional attention to protection of the environment. Yet limitations remain. The director-general for environmental matters lacks enforcement power to compel member states to comply with EU environmental directives. In addition, individuals have no legal recourse against states for noncompliance with EU environmental law (McGiffen 2005). Outside of the environment, EU social policy has been circumscribed. Since 1997 the EU has been more concerned with making social policy more “employment friendly” (Taylor-Gooby 2004, 12). Since 2001 the EU has shifted its social policy to an “open method of coordination” whereby the commission sets benchmark goals on social values and each state implements a two-year “action plan” for implementation (Atkinson 2003). This direction does not appear to have accomplished much (Rhodes 2003).
The limitations to the EU’s social regime notwithstanding, it is the most institutionally advanced of all trade-linked social regimes. Unlike other trade agreements, the EU has binding provisions on labor and environmental issues, which are implemented and enforced through the main institutions. Understandably, some social activists envision the EU’s social agenda as the desired starting point for creating a trade-linked social regime (Harvey, Collingsworth, and Athrey 1999; see Malamud 2005, 429). These hopes, though, are misguided in the contemporary global context. The EU experience is sui generis. Its range of substantive provisions and strong, supranational institutional bodies, like the commission and the ECJ, encroach substantially upon the sovereignty of member states. Such extensive integration builds upon a long postwar history and regional resolve not about to be replicated elsewhere in the foreseeable future. Furthermore, because most member states have long traditions of social regulation of the economy, there is general receptivity to including substantive social provisions in the body of the regional trade-governing structure. Moreover, with the EU’s recent expansion to include much poorer central and eastern European states, its receptivity to regional social provisions appears to be waning. To get a more representative view of the challenges faced by social activists in embedding social values in contemporary international trade governance, it is necessary to assess the more modest regional trade agreements.
Mercosur and Social issues: Focus on Consultation
Mercosur consists of five full members—Brazil, Argentina, Uruguay, Paraguay, and Venezuela. The first four have been members since Mercosur’s formation, while Venezuela joined in 2005. There are also five associate members—Chile, Bolivia, Peru, Colombia, and Ecuador. The exact legal status of associate members is ambiguous, but they possess little input into the institutional governance of Mercosur (Arieti 2006). Formed in 1991, the Mercosur treaty aspires in rhetoric to a common market vision comparable in its ambition to that of the EU. It calls for eliminating all trade barriers, establishing common external tariffs, and harmonizing macroeconomic policies (Manzetti 1994). In practice, Mercosur’s integration has been much more modest. It has proceeded unevenly and mostly in a negative form—through gradual reductions in trade and investment restrictions—rather than affirmative coordination of policies (Bernier and Roy 1999; Malamud 2005). Policies are usually developed in consultations between the heads of state at the biannual meetings of the Common Market Council (Bernier and Roy 1999). There is also an executive body, the Common Market Group (Grupo Mercado Común, or GMC), in charge of implementing policies, but unlike the European Commission it possesses little autonomy. The overwhelming emphasis of Mercosur has been on market-friendly integration (Bizzozero 1996; Malamud 2005).
Mercosur’s commercial emphasis has made it difficult terrain for interjecting social values. The original treaty included no social provision apart from a statement in the preamble that integration would “accelerate . . . economic development with social justice.” Prodding from labor movements and other social activists, however, has spurred the inclusion of a social agenda over the years. This agenda has consisted of nonbinding declarations of principles and the establishment of consultative bodies. These bodies are the Joint Parliamentary Committee, made up of selected members of parliament from each country, the Economic-Social Consultative Forum, and a series of advisory subgroups and committees to the GMC. The advisory committees have been the most accessible to nonstate actors and address a range of economic, technical, and social issues. The subgroup on labor matters, employment, and social security addresses labor issues. It has a tripartite structure of labor, business, and governmental delegates. Initially the subgroup followed the neoliberal tendencies of the governmental and business delegates and featured discussions on how to keep labor costs down (del Castillo 1993; Barbosa and Veiga 1994). Over time, labor unions have been able to influence the agenda. They persuaded the subgroup to call on all states to ratify thirty-four ILO conventions considered necessary for ensuring fair labor standards in the region (Alimonda 1994; Harvey, Collingsworth, and Athrey 1999).
In 1998 the full member states signed a social-labor declaration, which has some structural similarities to NAALC. It commits each country to respect a series of labor rights but avoids the imposition of binding obligations or harmonized standards (Compa 1999b; Bülow 2003). Similarly, the declaration uncouples implementation of its principles from the institutional process established in the main agreement on trade-investment issues. More affirmatively, it parallels NAALC in creating regional and national institutions to implement the underlying principles. Unlike NAALC, but like NAAEC, the regional body is given most prominence by way of a tripartite sociolabor commission. Its mandate is to examine how to improve working conditions in the region and to promote greater member compliance with domestic and international labor obligations. While potentially significant, implementation of this body has been slow, owing in part to an overall lag in the integration process in recent years (Bülow 2003; Grugel 2005). It therefore remains to be seen how this process will play out in practice. The central labor federations from the four countries have also long proposed inclusion of a social charter, made up of ILO provisions and other international human rights instruments (Harvey, Collingsworth, and Athrey 1999; Compa 1999b). Member governments have yet to accept this proposal.
Mercosur has been slower to address environmental issues. Although the treaty mentions harmonization of environmental policies, the language is phrased to prevent environmental regulations from hindering the development of a common market. It took two years following ratification for Mercosur to address environmental issues explicitly; it did so only when the full members set up a special advisory meeting on the environment (Blum 2000). Now a permanent subgroup made up of environmentalists, business groups, and environmental ministers, it has addressed business concerns that environmental measures not hinder the common market and environmental concerns that integration not come at the expense of environmental standards. The group also promotes the building of environmental institutions.
To date, little concrete has come out of the labor or environmental advisory bodies or of social policy more broadly. Its social policy remains largely rhetorical (Grugel 2005; Malamud 2005). Hampering progress are the resistance of economic elites in the member states and wide disparities in development among the member states (Grugel 2005). Nevertheless, labor movements and environmentalists have gained an institutional voice that could prove of cumulative value. Moreover, the three largest members, Brazil, Argentina, and Venezuela, are led by left-of-center governments critical of neoliberalism (Carranza 2004). Progress on social issues, however, is likely to take a backseat to two more immediate concerns, especially of Brazil’s Workers’ Party. One is to stabilize faltering economic integration (Porrata-Doria 2004). The other is to ensure Mercosur’s continued viability in the face of an ambitious neoliberal hemispheric trade-investment agreement (the FTAA) being advanced by the United States (Carranza 2004).
The Relative Strength and Viability of the Nafta Social Model
The social models of Mercosur and Nafta may be decidedly weaker than Social Europe, but they have the virtue of being able to be broadly generalized. Neither involves the extensive scope of institutionalization found in the EU, and both are politically viable, given the relatively weak position of social values in shaping contemporary international trade governance. For both Mercosur and Nafta, the social institutions are disconnected from the main commercial bodies and focus on consultation and nonbinding principles. Yet Nafta’s social model offers considerably more to activists in practice. Not only does the Nafta social model have the research-gathering and consultation components found in Mercosur, it also enables individuals and NGOs to file complaints of noncompliance against a member government before an outside review body. Indeed, the scope of issues open for transnational citizen petitions extends beyond anything provided in the EU. As demonstrated in this study, this citizen-petition mechanism has proven political potency.
Nafta’s social model stands out further for its creative underlying principle, which is sensitive to sovereign concerns yet potentially demanding: enforcement of a state’s own domestic laws on labor and environmental standards. At first glance, this principle appears uncontroversial and insignificant; it seems merely to commit a state to uphold normative principles agreed upon in its own internal political deliberations. In fact, however, the principle places a state’s domestic enforcement practices under formal regional scrutiny. Of course, a state could choose to pass weak laws on labor and environmental standards. But this option cuts against a strong global trend. Most states have ratified the International Covenant on Civil and Political Rights and are members of the ILO, which obligates them to uphold all core labor standards (OECD 1996). Similarly, most states have ratified one or more of the major multilateral environmental treaties. In addition, the very act of negotiating to join a trade bloc with the United States or other Western states pressures a state to establish internationally acceptable labor and environmental standards (see Manley and Lauredo 2004). Many states do, however, endeavor to make such value-based laws purely rhetorical. The value of incorporating a formal international component, implemented by an accessible citizen-petition mechanism, is that it exposes the state to outside scrutiny and thereby raises the cost of willful neglect.
The involvement of the United States, the most influential state, further increases the broader policy relevance of Nafta’s social model. At the behest of the United States, Nafta’s social model has served as the template for many recent or emerging multilateral and bilateral trade agreements. The U.S. commitment to linking trade agreements with labor and environmental standards has survived into the George W. Bush administration. The 2002 Bipartisan Trade Promotion Authority Act requires the inclusion of environmental and labor standards in treaty negotiations (Manley and Lauredo 2004, 92–93). Accordingly, the focus on domestic enforcement has extended to post-Nafta U.S. trade agreements with Jordan, Singapore, and Chile. The latter two, executed in 2003, call upon each government to create an office in its environmental and labor departments to review “public communications.” The Central American Free Trade Agreement has the same provision in its labor chapter (16.4) and establishes a regional secretariat to review citizen petitions on environmental issues (17.7–8). For the proposed Free Trade Area of the Americas there is much division on social issues, but the Nafta social model is the preferred U.S. approach (Manley and Lauredo 2004).
In short, the Nafta social model is relatively advanced, potentially potent, and widely generalizeable. Thus, its empirical record informs us of the real possibilities of mitigating the harmful social consequences of increased trade-investment integration through international institutional means.
The Scholarly Significance of Examining Nafta’s Social Model
Beyond reflecting a poor global public policy perspective, much of the neglect or slighting of Nafta’s social model comes from a failure to situate Nafta’s citizen-petition mechanisms in broader trends of global governance. Although these mechanisms have their peculiarities, they do broadly reflect the evolving nature of international governance and law. First, international law is increasingly transnational, in terms of interacting closely with domestic developments and being directly accessible to nonstate actors. Second, transnational international law regularly incorporates quasi-judicial mechanisms. Under these mechanisms, an administrative body reviews claims from a nonstate actor that a state party has failed to comply with the treaty’s commitments (Chayes and Chayes 1995, 224–25). Although the administrative body interprets legal norms, it is not a formal court, and the process takes place without the formal trappings of an adversarial proceeding.
Transnational quasi-judicial mechanisms are especially prominent with respect to public interest norms like human rights and environmental standards (Weiss 1997, 3; see Romano 1999). Examples of such mechanisms include the UN Human Rights Commission, the World Bank Inspection Panel, and the ILO’s Committee on Freedom of Association (Helfer and Slaughter 1997; Fox 2000; Swepston 1998).
In addition to not recognizing their prominence, current scholarship lacks the conceptual tools to understand the political significance of transnational quasi-judicial mechanisms. Of particular relevance are gaps in studies of international law and studies of transnational activism. Scholarship on international law has traditionally viewed it as a command-oriented phenomenon that orders states to adopt or discontinue specific policies. Yet transnational mechanisms, especially soft-law ones, are not designed for this purpose. Rather, as elaborated upon in Chapter 1, their point is to interject a legal process into a potentially contentious political matter. In addition, scholarship on international law has been mostly state-centric and thus has missed the growing influence of nonstate actors in shaping international legal developments. This shortcoming is costly for appreciating transnational quasi-judicial mechanisms, given that social activists are typically the party that gives significance to such mechanisms. Indeed, activists seek international codification of social values such as human rights not because they expect an international body to enforce such provisions directly but because they view codification, coupled with institutional mechanisms, as a valuable lever for advancing domestic changes.
Conversely, scholarship on transnational activism has been slow to incorporate international legal developments into its analysis. In particular, the bulk of the scholarship has not appreciated the politically sophisticated manner in which social activists use accessible international law channels for political gain.
The appeal of this book’s close study of Nafta’s citizen-petition mechanisms is that it provides a conceptual framework that expands upon and synthesizes insights from studies on both international law and transnational activism. Specifically, I show how a transnational quasi-judicial mechanism offers a distinctly legalized political platform by which activists can boost an ongoing domestic political cause.
I look at the interaction between transnational activism and international law as the legalization of politics and the politicization of law. In the first scenario, international law mediates and influences political contestation even where the legal channel imposes no formal policy obligations (other than participating in the legal process). I focus on both the functional qualities of law in offering explicit standards and procedures and, even more important, the legitimating qualities of law in defining appropriate behavior among state and nonstate actors. This is the focus of Chapter 1. The politicization of law explains how activists use transnational legal channels. Rather than treat them as conventional legal channels, activists employ transnational legal mechanisms as a platform for advancing a broader political goal, such as strengthening the independent labor movement. The goal is not simply to gain a favorable legal finding but to advance the broader political agenda. Activists will therefore use a mixture of legal and political strategies to get the maximum political value out of the transnational legal channel. This theme is developed in Chapter 2.
Method and Data
This study is designed to assess the conceptual framework outlined above, which finds that activists’ success with transnational quasi-judicial mechanisms rests upon a combination of validation from the transnational quasi-judicial body and the incorporation of a complementary and sophisticated political strategy. My findings are based on all the citizen petitions filed by activists from 1994 through 2002. I followed each petition closely, from the time activists first considered using the citizen-petition mechanism through the actual filing, the response of the quasi-judicial bodies, and the ultimate political outcome. I carefully assessed activists’ goals in filing the petition, the level of political effort employed to promote the petition, the degree of legal support given by the quasi-judicial body, and the target actor’s response to the process. In this way I have been able to discern causal connections, if any, between the actions of the activists and the quasi-judicial body and those of the target actor.
I traced this process through field research and archival work. My primary data come from in-depth interviews and analyses of documents generated by the petition process. I interviewed lead coordinators for the petitions, staff at the NAAEC secretariat, JPAC and the NAALC NAOs, and others with firsthand knowledge of the petitions. I analyzed the petitions, the reports of the quasi-judicial bodies, transcripts of public hearings, responses from governments and private firms, strategy papers of petitioners, and relevant correspondence. I also participated in meetings sponsored by JPAC and the NAAEC secretariat that evaluated NAAEC’s petition mechanism. Finally, I reviewed secondary studies of the Nafta petitions and media reports.
The time period chosen, 1994–2002, offers a rich set of case studies. It encompasses considerable variety in the degree of political sophistication applied by petitioners, the level of review body support, and the results attained. Such variety enabled me to assess carefully the relationship between each of these factors. To supplement these findings, I include an overview of recent developments through 2006. Overall, this study shows how the process works against distinct societies (with the contrast between Mexico, on the one hand, and the United States and Canada, on the other hand, being the most pronounced) in the midst of shifting political climates (for example, with new governments coming to power in Mexico and the United States in 2000–2001), and with distinct institutional structures between the labor and environmental mechanisms. Accordingly, my findings present a firm basis for shaping a robust theory of transnational quasi-judicial mechanisms.
Organization of the Book
Chapter 1 draws on international relations and international law scholarship to develop a solid understanding of the nature and influence of international law in an increasingly interdependent age. Although the scholarship has become more sophisticated in its understanding of international law, it remains undeveloped in its analysis of less traditional but increasingly popular forms of international law, like transnational soft law. I explain why transnational soft-law mechanisms, especially quasi-judicial bodies, have proliferated, and how they assume political significance. I focus on the role of international law in regulating and shaping political contestation, which I refer to as the legalization of politics. The chapter closes with a specific assessment of Nafta’s labor and environmental citizen-petition mechanisms.
Chapter 2 looks at social activists, the most crucial actor in shaping public interest–oriented transnational quasi-judicial mechanisms. It examines how transnational activists interact with international law. I begin with a review of the growth of and literature on transnational activism. I identify promising insights into transnational political opportunity structures but fault the scholarship for its failure to address, in a sophisticated manner, the role of international law. The chapter then develops an original conceptual framework to explain how accessible international law offers a valuable and unique transnational political platform for activists. In doing so, I synthesize scholarly insights on international law, transnational activism, and legal mobilization. The chapter concludes by applying my framework to the Nafta setting.
Chapter 3 reviews all of the activist-initiated Nafta labor petitions in order to assess the explanatory effectiveness of this book’s theoretical framework. It includes comprehensive tabular presentations and detailed histories of illustrative petitions. I focus on the level of political mobilization engaged in by petitioners, the degree of support given by the quasi-judicial body to the petition, and the results attained. The chapter also discusses the impact of important political transitions in the United States and Mexico in 2000–2001 and updates developments through 2006. I show how these important changes in domestic political settings have diminished the political value of the transnational citizen-petition mechanism.
Like Chapter 3, Chapter 4 reviews each activist-initiated environmental petition according to this book’s conceptual framework. It also shows how NAAEC’s stronger institutional apparatus enables it to be a more valuable political platform than the NAALC mechanism. In particular, I assess how NAAEC’s institutional advantages have allowed it to withstand domestic political attacks from member governments after the political transitions of 2000–2001.
The Conclusion summarizes the major findings of this book, considers the scholarly and public policy implications, and suggests a follow-up research program that can deepen our understanding of transnational quasi-judicial mechanisms. Such a research program would allow continued advances in appreciating the evolving influence of international law and transnational activism in a more globalized and legalized world. The Conclusion also hazards some guesses about what to expect of Nafta citizen petitions in light of contemporary political developments. I close with a recommendation that social justice advocates not write off social mechanisms like those found in Nafta’s parallel accords. Rather, they should continue to use such mechanisms where conditions are most promising for useful political gain, and lobby on other fronts for more fundamental improvements in global economic governance.
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