DEMOCRACY AND HUMAN RIGHTS: TOWARDS AN ILO-OAS JOINT COMMITTEE FOR A HUMAN AND LABOUR RIGHTS AGREEMENT
Dr. Michel DION
Université de Sherbrooke
2500, boul. Université
Sherbrooke (Québec) CANADA
J 1 K 2 R 1
Tel: 1-819-821-8000, ext. 2913
Presentation at the OAS Special Committee on Inter-American Summits Management
OAS Headquarters, Washington, D.C.
September 19, 2000
The OAS has a long experience about human rights and democracy in the Hemisphere. As said the Discussion paper submitted by the Chair of this Special Committee on Inter-American Summits Management (First Basket. "Strengthening Democracy"), continued cooperation on human rights, whether they are civil, cultural, economic, political or social rights, will be a hemispheric priority (cf. Second Summit of the Americas, "Plan of Action", 1998). In this short presentation, I would like to suggest a mechanism which could contribute to such a "continued and increased cooperation on human rights". My suggestion should be considered as referring to both the first and the second baskets. Indeed, we cannot separate the issue of labour rights from the general reference pattern of human rights. Otherwise, we would adopt a different perspective on human rights and about labour rights, in their interaction with democratic institutions and globalization of business. We should remind the Vienna Declaration (1993) according to which all human rights are universal, indivisible and interdependent.
I am suggesting here a cooperative link between the OAS and the ILO, that is, an ILO-OAS Joint Committee for a Human and Labour Rights. Such a cooperative link could substantially improve the way many NGO’s will react to the next Summit of the Americas.
An ILO-OAS Joint Committee for a Human and Labour Rights Agreement
The process of the Free Trade Area for the Americas (FTAA) is going ahead since the 1994 Miami Summit of the Americas. Meanwhile, NAFTA, MERCOSUR and the other Southern Economic integration projects (such as the Andean Pact and CARICOM) are growing and giving birth to bilateral free trade agreements. As to the core labour rights or standards, NAFTA has its own Labor Agreement (NAALC). Then, we could ask the following question: Is there a scenario of hemispheric economic integration that could ensure to set up a Charter of Core Labour Rights (or "Social Clause") for the Americas? If we look at the second basket ("Creating Prosperity"), it is said that labour standards and working conditions could be considered. It does not mean that they will actually be considered. Within the Ministerial Declaration of San José (1998), the Ministers responsible for Trade were confident that the FTAA will improve the well-being of people, especially their working conditions. Within the Plan of Action of the 1994 Summit of the Americas, it is said that "as economic integration in the Hemisphere proceeds, we will secure the observance and promotion of workers’ rights, as defined by appropriate international conventions" (par. 9). Within the Santiago Declaration (1998), it is mentioned that core labour standards recognized by the ILO will be promoted. It does not mean that they will necessarily be applied! Within the Santiago Plan of Action, we can observe that Governments will develop policies aimed at promoting and protecting human rights, in accordance with "relevant" international norms and principles, incorporating those policies, where appropriate, into national human rights programs. So, keeping in mind such terms as "relevant international norms" and "where appropriate", I am suggesting to set up an"ILO-OAS Joint Committee for a Human and Labour Rights Agreement"?
The process of the FTAA, that is the elimination of barriers to trade and investment by the year 2005 throughout the Western hemisphere, began at the "Miami Summit of the Americas" (December 1994). But under the FTAA process, which model of labour agreement could be developed? If only the NAALC remains for Canada, US and Mexico, and no other labor agreement is concluded in the context of FTAA, it would be less than a success, as to worker rights. The political negotiations implied in the FTAA, and especially the possibility for the Clinton administration to get the "fast-track negotiation authority" for further multilateral free trade agreements (that is, to delegate to the President the power to regulate foreign trade without having to pass by the point-by-point analysis and the amendment processes of the agreement at the Congress) will play a major role in the existence and the contexts of an eventual "social clause" for the FTAA. The Action Plan of FTAA actually includes labour rights.
The five main economies of the Americas belong either to NAFTA or MERCOSUR. Together, both free trade areas represent 81% of the population and 97% of the gross product. Of course, the potential for Canada and U.S. to increase exports to Latin American countries would be very important, in the case of a continental economic integration. USA have already initiated the path toward such an integration, by signing the "Four Plus One" agreement with MERCOSUR countries on January 19, 1991. In this agreement, labour rights were explicitly recognized. It seems that there are few probabilities that the sub-regional economic integration projects (bilateral or multilateral free trade agreements and MERCOSUR) could be incorporated into NAFTA. But if it would become the real scenario, what labor rights agreement, if one would be actually kept, would be chosen? The NAALC or the eventual MERCOSUR's Charter of labor rights? Perez-Lopez (1995: 473) proposed the establishment of a hemispheric organization that would secure the observance and promotion of ILO conventions by nations of the hemisphere. I am proposing here a kind of "joint venture" between OAS and ILO, as a "pilot project" for an eventual hemispheric organization. The OAS could also function as a unique catalyst, ensuring that a Charter of human and labour rights will be kept in any hemispheric economic integration process.
In any economic integration scenario, would it be necessary to conclude a new labour side agreement for the Americas? Chile will not probably be the leader of a continental economic integration, followed by MERCOSUR countries and the other sub-regional economic integration projects in Latin America. What is much more probable is that MERCOSUR is and will remain the "leader project" for a "South American free trade area". The process for an eventual South American Free Trade Agreement (SAFTA) is going ahead for many years. On the other hand, negotiations for full accession of Chile into NAFTA began after the 1994 Summit of the Americas. Brazil will probably act as the leader country of SAFTA, so that the final step of the hemispheric economic integration will be in the hands of two countries: Brazil (MERCOSUR) and USA (NAFTA).It could give birth to the accession of MERCOSUR to NAFTA, only if this scenario could give subtantial advantages to SAFTA's natural leader (Brazil).
In the context of creating a free-trade area for the Americas, the countries involved in the process will be in face of two basic political wills: to avoid protectionism and to avoid social dumping. States are the basic policymakers in the public sphere, so that they should emphasize their task to safeguard the social conscience, to share the resources with objectives of fairness and social justice (Dion: 1997). An ILO-OAS Joint Committee for a Human and Labour Rights Agreement could contribute to such a role, in working for an eventual Human and Labour Rights Agreement within the FTAA processes.
The ILO-OAS Joint Committee for a Human and Labour Rights Agreement implies few steps in the existing processes for an hemispheric economic integration:
1) Restructuring the OAS as including such an ILO-OAS Joint Committee for a Human and Labour Rights Agreement, in the context of the FTAA processes. The objective of the Joint Committee would be to work on such an Agreement to be safeguarded through the FTAA processes. Representatives from the Inter-American Commission on Human Rights, whose main function is to promote the observance of human rights and to serve as a consultative organ at the OAS (Charter of the OAS, art. 106) could be involved within such a Joint Committee;
2) Launching a widened and deeper dialogue between the OAS and the ILO about labour rights, in order to define a common basis for an eventual "FTAA Human and Labour Rights Agreement". The ILO has participated in various groups meetings of the OAS, on the social dimension of globalization and regional economic integration, and its effects on employment and labour integration. As said the Director General of the ILO in his 1999 Report, there should be an harmonization of labour policies in the context of an hemispheric economic integration, that is, a kind of framework of basic labour rights (although it does not mean that labour policies and laws are identical). On the other hand, the Summit of the Americas process includes a too exclusive reference to the Inter-American human rights system (Fifth Report of the Special Committee on Inter-American Summits Management, 27 May 1999). The expertise of the Inter-American Commission of Human Rights and of the Special Rapporteur for Freedom of Expression should be more closely linked to that of the ILO. As it is mentioned in the ILO Declaration on Fundamental Principles and Rights at Work (1998), the ILO is the international organization that has the competence to deal with international labour standards and "enjoys universal support and acknowledgment in promoting fundamental rights at work". We should remember that the Ministerial Declaration of San José (1998) and the Singapore Ministerial Conference of the WTO (1996) also acknowledged that the ILO is the competent body to set and deal with core labour standards. Moreover, the ILO and the OAS have shared concerns for strong social policies, justice and democratic institutions. Usually, the official documents of the Summit Profess refer to several basic labour rights, especially freedom of association, right to organized and bargain collectively and prohibition of forced labour. Santiago’s list of labour rights (which is identical to the list accepted by the ILO Declaration on Fundamental Principles and Rights at Work, art. 2, 1998) seems to be larger than that of the American "General System of Preferences" (GSP). For instance, it focuses on the elimination of all exploitative forms of child labour, and non-discrimination in employment. However, it seems to be less concerned with minimum wages, working hours and occupational health and safety.
3) Organizing the Joint Committee in co-ordination with the existing relevant Committees of NAFTA, MERCOSUR and FTAA. In that process, the economic and human rights leadership of various countries (such as USA, Canada, Argentina and Brazil) shoud be much more emphasized, so that such a leadership could directly contribute to set up the ILO-OAS Joint Committee for a Human and Labour Rights Agreement.
ENFORCEMENT MEASURES: Such enforcement measures come from the application, mutatis mutandis, to the Social Clause, of suggestions made by the Economic Policy Institute, the Institute for Policy Studies, the International Rights Fund, the Public Citizen's Global Trade Watch, the Sierra Club and the US Business and Industrial Council Educational Foundation, in their joint report about NAFTA (1997).
1. Intergovernmental cooperation is essential in realizing the objectives of the Social Clause. Each Party (Country) should exchange information on the measures it has taken to give effect to this Social Clause and on their experience with this Clause. Parties should consult on a bilateral or multilateral basis, as appropriate, on matters relating to this Social Clause and its application, and with respect to the development of international agreements and arrangements on issues related to this Clause.
2. Parties should publicize and disseminate the Social Clause to their business communities. They should take into account the provisions of this Clause, when introducing, implementing and reviewing laws, regulations and administrative practices on matters dealt in this Clause.
3. Each Party will write, every two years, a report (a Labour Information Audit) on the measures taken for applying the various provisions of this Social Clause. Each Party will have to inquire about the various ways by which business corporations doing business with other partners in the Americas have applied the values and principles established in the Social Clause.
4. A Committee of Experts, composed of twenty (20) independent, eminent figures in applied ethics, law, sociology or any other relevant field of research, will analyse the reports submitted by the Parties. The Committee of Experts will send its report to the ILO-OAS Joint Committee for a Human and Labour Rights Agreement.
5. The ILO-OAS Joint Committee will publish a general report, taking into account the conclusions and recommendations made by the Committee of Experts.
DION, M., Towards a "Social Clause" Within the Hemispheric Economic Integration Processes (NAFTA, MERCOSUR, FTAA), Ottawa: Canadian Centre for the Development of Foreign Policy, May 1998.
DION, M. (Ed.), L’éthique gouvernementale, Montréal, "Cahiers de recherche éthique", no 21, Fides, 1997.
ECONOMIC POLICY INSTITUTE, INSTITUTE FOR POLICY STUDIES, INTERNATIONAL LABOR RIGHTS FUND, PUBLIC CITIZEN’S GLOBAL TRADE WATCH, SIERRA CLUB, BUSINESS AND INDUSTRIAL COUNCIL EDUCATIONAL FOUNDATION, The Failed Experiment. NAFTA at Three Years, June 26, 1997, p. 17-20.
FIRST SUMMIT OF THE AMERICAS, Plan of Action, Miami (USA), Dec. 9-11, 1994.
FOURTH MINISTERIAL MEETING, Minister Declaration of San José, San José (Costa Rica), March 19, 1998.
INTERNATIONAL LABOUR ORGANIZATION, Report of the Director General, Lima, XIV American Regional Meeting, 1999.
INTERNATIONAL LABOUR ORGANIZATION, ILO Declaration on Fundamental Principles and Rights at Work, ILO, Geneva, June18, 1998 (86th Session).
ORGANIZATION OF AMERICAN STATES, Charter of the OAS, Washington, OAS, 1997.
PEREZ-LOPEZ, J.F., «The Promotion of International Labor Standards and NAFTA. Retrospect and Prospects», Connecticut Journal of International Law, vol. 10, no 2, Spring 1995, p. 427-474.
SECOND SUMMIT OF THE AMERICAS, Santiago Declaration, Santiago (Chile), April 18-19, 1998.
SECOND SUMMIT OF THE AMERICAS, Plan of Action, Santiago (Chile), April 18-19, 1998.
SPECIAL COMMITTEE ON INTER-AMERICAN SUMMITS MANAGEMENT, Fourth Report of the Special Committee on Inter-American Summits Management to the Ministers of Foreign Affairs, Washington, OAS, OEA Ser. G CE/GCI-132/98 rev. 2 (13 May 1998).
SPECIAL COMMITTEE ON INTER-AMERICAN SUMMITS MANAGEMENT, Fifth Report of the Special Committee on Inter-American Summits Management to the Ministers of Foreign Affairs, Washington, OAS, OEA/Ser.P AG/doc.3821/99 (27 May 1999).
UNITED NATIONS WORLD CONFERENCE ON HUMAN RIGHTS, Vienna Declaration and Program of Action, June 1993.
WORLD TRADE ORGANIZATION, Singapore Ministerial Declaration, December 13, 1996.
Dr. Michel Dion
Université de Sherbrooke
Sherbrooke (Québec) CANADA
Tel: 1-819-821-8000, ext. 2913
© 2000 Organización de los Estados Americanos, Oficina de Seguimiento de Cumbres