A Dissenting Opinion

The emergence of discrepancies with my colleagues in the Review Committee of Experts regarding some of the ideas contained in the analysis, above all those set down in sections III (public communications/submission procedures) and IV (general conclusions and recommendations), has led me to offer what might be described as a dissenting opinion. On the basis of my interpretation of our role in the overall review of NAALC operations, I would like to emphasize my viewpoint as regards the mandate we received from the Ministerial Council. Likewise, I also wish to state my opinion concerning the nature and scope of the recommendations we are meant to issue. I then intend to proceed to the topic of public communications or submissions where, aside from underlining my personal opinion, I shall also comment on the origin of my differences with my colleagues. Since the latter have adopted the position of recommending the future modification of the NAALC, I feel that I have no choice but to situate the Agreement within the political context that led to its creation, and within which it has subsequently functioned; this context implies the presence of actors with specific interests. Finally, I will offer a brief and synthetic overview of the conclusions and recommendations I consider pertinent to the arguments developed throughout the body of this work.

I. The NAALC Review Process

This report, of which my personal opinion forms an integral part, is a result of the provisions set down in Article 10:1(a) of the NAALC: "The Council shall oversee the implementation and develop recommendations on the further elaboration of this Agreement and, to this end, the Council shall, within four years after the date of entry into force of this Agreement, review its operation and effectiveness in the light of experience."

For all such purposes, the Ministerial Council chose to establish a three-member Review Committee of Experts, one from each of the NAALC signatory countries. The definition of rules and procedures for the integration of an Expert Committee report was left to the discretion of its members. Consequently, during the first meeting held at Dallas, Texas, in January of 1997, it was agreed to seek a document encompassing a high degree of consensus. Likewise, three specific sections were also established, one of which would fall to each expert.

The introductory section was entrusted to Pierre Verge, the submission procedures section would be handled by Clyde Summers, and the Cooperation section fell to me. All corresponding observations were opened for discussion; although some were later incorporated and others rejected, we were nonetheless conscious that the information should be balanced, thereby benefiting both the member nations and the final public reader.

II. Differences of Opinion Concerning the Mandate, Nature and Scope of the Recommendations

Throughout our discussion, it became clear that there were two basic matters upon which it was impossible to reach an agreement.

The first of these involved the mandate, or in other words, the interpretation of the provisions set down in Article 10:1(a) of the NAALC. Meanwhile, the second of these topics referred to the nature of observations and recommendations, or the question of whether they should be solely focused on the terms embodied in the text and spirit of the NAALC, or whether they should be extended to encompass proposals involving the modification of the Agreement in line with the personal convictions of Committee members.

The impossibility of reaching a consensus on these matters led us to agree that, as long as its content reflected an objective and balanced analysis, we would approve the main body of the report by consensus. I was also granted specific freedom to issue a personal opinion as regards General Observations, Recommendations and Conclusions. Nevertheless, we were not even able to completely agree on the text, a fact that became especially apparent in the sections covering the interpretation of the articles set down in the NAALC.

As regards the first of these points of contention, I believe that the Ministerial Council was only able to request that the functioning of the Agreement be reviewed "in the light of experience." In other words, the Council was asking us to review the NAALC exactly as it had been subscribed to by the Parties, considering the experience obtained during its existence, and in exactly the manner provided for by the aforementioned Article.

However, the Canadian and United States members interpreted this Article and the request issued by the Ministerial Council in a far broader manner. My colleagues began from the premise that they were implicitly empowered to make future recommendations designed to amend the Agreement, and that such modifications would not be exclusively limited to its enforcement.

As regards the foregoing matters, my colleagues in the Committee tended to give special relevance to certain points of conflict within the NAALC. I however, firmly believe that cooperation represents the very essence of the Agreement and that controversy and its subsequent resolution should be the exception. My colleagues placed particular emphasis on submission procedures and later outlined the possibility that the latter might constitute a mechanism for the resolution of specific violations of the judicial or quasi-judicial proceedings subject to jurisdiction in force in the territories of each of the Parties.

In my opinion, this mandate should be interpreted in strict accordance with the provisions of Article 20, which states that the Parties shall "make every attempt through cooperation and consultations to resolve any matter that might affect its operation." Inasmuch as this provision precedes the articles dealing with the solution of controversy, it is possible to suggest that the spirit of the NAALC lies in its sense of cooperation rather than in the resolution of conflict.

Furthermore, all the procedures related to the so-called Public Communications (Articles 21, 22 and 23) appear in the chapter entitled Cooperative Consultations and Evaluations, since these procedures are simply a mechanism agreed upon by the Parties to allow public participation in the proceedings provided for by the Agreement. As in the case of other proceedings, submission procedures are ultimately designed to permit the establishment of guidelines to determine the presence of systematic violations in the enforcement of labor legislation by any of the Parties. They are not expressly intended to seek the resolution of the specific conflicts or violations of judicial or quasi-judicial proceedings that actually give rise to public communications. Likewise, the provisions set down in the Agreement are designed to determine the existence of unfair competition within the framework of the NAFTA; this situation invariably arises from systematic violations that adversely affect the enforcement of labor legislation. In the Preamble, the NAALC is expressly linked to the NAFTA. A careful reading of the NAALC within this general context leads us to the conclusion that the Agreement is not designed to provide the means for substituting national jurisdiction or for correcting specific conflicts subject to such jurisdiction.

In other words, this body of provisions and articles leads us to the notion that public communications cannot serve as the basis for a supranational jurisdiction operating over and above the jurisdictions employed by each of the Parties. Likewise, such submissions may not be considered as a mechanism for altering the manner in which national laws are enforced or modified. The enforcement or modification of laws is strictly subject to the sovereignty of each of the NAALC signatory countries.

As regards the second point of contention, the nature of general observations and recommendations, I believe that since our evaluation of the NAALC should be performed under the terms of the foregoing considerations, the latter should limit their scope to improving the operation of the Agreement as convened by the Parties. Should we do otherwise, our results will necessarily place greater emphasis on what the NAALC should do in accordance with our own personal opinions, rather than what it actually is and how it has functioned during the few short years of its existence.

It should be said that four years is a very short period of time on which to base an evaluation seeking to amend the NAALC; any decision to continue in this direction would clearly lead us to speculate upon in-depth changes that go far beyond the original premise established by the Parties. As far as international relations are concerned, haste invariably carries a high price tag, while patience often bears much-desired fruit.

Even in the case of the European Union (formerly known as the European Economic Community), the pressures applied during the 1970s and 1980s in favor of broad-based, supranational labor legislation detained the formalization of commitments. It was simply not possible to uphold a sense of equality among clearly unequal partners. It was not until the 1990s, when the decision was made to delimit such commitments, that their formalization finally became a reality.

Furthermore, I consider that when making our first evaluation of the NAALC, we should be especially careful when calling for modifications since, due to constitutional factors, the Agreement did not actually come into force in Canada until 1997. The proposal of modifications after such a short period of time, and within such a limited geographical framework, would be imprudent to say the least.

The discrepancies with my United States and Canadian colleagues regarding the nature of certain NAALC mechanisms were gradually mitigated during the course of our discussions. Nevertheless, I feel that the text of the evaluation still imbues the Evaluation Committees of Experts (Article 23) and Arbitral Panels (Article 29) with a somewhat questionable supranational character. An in-depth reading of the pertinent articles of the Agreement reveals that the Parties created a mechanism for resolving controversy that is primarily based on negotiation; if this fails, then arbitration is employed. However, even arbitration is subject to limited jurisdiction, since its rulings may only be enforced through the state offices of the disputing parties.

III. Public Communications

The fact that the vast majority of reports related to submission procedures have been requested by the United States NAO, and that all of them focus on Mexico, has made a careful evaluation of their sources of information, analysis and arguments absolutely essential. This is especially important since my Canadian and United States colleagues based their analysis and subsequent recommendations and conclusions on the reports produced by the United States NAO⁴. An analysis of these reports, vis à vis the available information submitted by the Mexican NAO in each of these cases, leads us to the following conclusions:

1. The reports and analysis made by the United States NAO are essentially based on information submitted by the petitioners and either ignore or substantially minimize the input offered by other actors.

2. As is only natural, the allegations made by the petitioners emphasize their point of view as regards the litigation process and frequently lack substantial evidence.

3. The abundance of information supplied by the petitioners contrasts sharply with the lack of arguments or positions submitted by other actors such as Mexican companies and a large segment of the Mexican trade union movement.

After having read the reports, and in the light of the information provided by the Mexican NAO, I find that, contrary to the insinuations of my colleagues, the available information does not offer any evidence as to the existence of systematic omissions in the enforcement of labor legislation by the Mexican government. In several of these cases, it has been clearly proven that Mexican labor legislation was enforced and that sufficient legal recourses and provisions were made available for worker protection; furthermore, these provisions are often considerably more generous than their United States counterparts. Even in those cases in which plaintiffs appealed against a decision issued by a court of the first instance and resorted to a superior tribunal or even the Supreme Court, these proceedings were resolved in strict accordance with legal stipulations and within the terms set down by the Mexican legal system.

Furthermore, I am also of the opinion that none of these submissions should have been accepted. With the exception of Submission 9701⁵, all the other procedures initiated by the United States NAO and the one accepted by the Mexican NAO were characterized by the fact that litigation was still under way and the recourses available to the disputing parties had not been exhausted. If public communications are ultimately aimed at identifying the systematic violation of labor legislation enforcement by any of the Parties, it is clear that this measure may not be utilized if legal proceedings are still in process and if the disputing parties have yet to exhaust the legal resources at their disposal. We should therefore not be surprised by the degree of confusion arising between the objectives of submission procedures as set down in the text of the NAALC and the idea harbored by my colleagues in which these procedures may be used to resolve the in-depth litigation problems that initially led to their submission.

When viewed from an institutional standpoint, it would seem that the manner in which these submission procedures have been handled has generated a rather perverse triple effect. Since they are solely focused on Mexico, it would seem that this country has become the accused of the tripartite relationship and that the enforcement of its labor legislation is all that really merits scrutiny. Second, the indiscriminate acceptance of submissions has given greater weight to conflict vis à vis cooperation, thereby encouraging false expectations regarding the corrective capabilities of the Agreement in specific cases. Finally, and as has also been the case of the Secretariat, the United States and Mexican NAOs have been obliged to relegate those activities not directly linked to the development of submission procedures.

IV. The NAALC and its Political Context

The old school of political realism in international relations has shown us that such relations do not come about in a vacuum situation; this perspective has never ceased to underline the importance of internal political actors, while also emphasizing the political and economic asymmetry between States as part of its explanation of the international order. Any analysis of the NAALC outside of the context of the political panorama within which it was created and now operates could well lead us to issue naive or even erroneous recommendations.

Matters pertaining to the analysis of the relationship between the internal policies of the Parties and the enforcement and functioning of the NAALC were simply not considered in this analysis. Likewise, the existence of extremely marked asymmetries between the three countries, a fact that was clearly highlighted during the formulation of the NAALC, were blatantly overlooked. This is clearly the main weakness of the report. The failure to consider these factors would make it seem as though the NAALC functions within a total political vacuum.

The NAALC should be considered from the perspective that led to its creation. Since it is a parallel agreement to the North American Free Trade Agreement (NAFTA), its goals are necessarily situated within the objectives of the latter, one of which includes the improvement of living standards in each of the three countries. While the NAALC is consequently an instrument designed to attain this goal in terms of labor relations, it nonetheless considers the social and economic differences existing between the three countries, together with the diversity of historical experiences characterizing their institutional development. Hence the emphasis on the cooperative features of the NAALC and its insistence on the mutual understanding and knowledge of the labor cultures and institutions that have been so laboriously and carefully sculpted over the years by each of the Parties. When the NAALC was formulated, no attempt was made to impose the industrial relations perspectives and experiences of any one of the three countries upon the others.

Likewise, the role of exception embodied in the Agreement as regards conflict, arbitration and sanctions also comes into sharp focus. While it functions under the premise of increasing commercial liberalization and clearly constitutes a response to legitimate fears concerning the behavior of labor markets, the NAALC is not however a means of disguising protectionist intentions under the pretext of labor issues. Avoiding this trap was an important goal during the creation of the Agreement, since there was clear evidence that the traditional economic sectors of the most developed Parties wished to use it as a means of defending their labor sources. Nonetheless, economic logic would seem to dictate that the deficient competitiveness of these sectors may well lead to their eventual demise.

However, the original goals of the NAALC run the risk of becoming adulterated by the perspective which nongovernmental United States trade unions have attempted to impose upon it. Although it has since allowed some of its unions to test the limits of the Agreement, especially those governing the freedom of trade union association, the AFL-CIO originally opposed and continues to formally express its opposition to the NAALC. This strategy has three main objectives: a) to focus attention on Mexico, which is considered an unfair competitor vis à vis the attraction of regional investment; b) to encourage a negative vision of judicial labor proceedings and the enforcement of labor law in Mexico; and c) to seek strategic alliances, especially with the so-called independent trade unions.

The relationship between the political context prevailing in the United States and the operation of the NAALC may be clearly appreciated by analyzing the dates on which the public communications were submitted. Of the 10 procedures accepted by the United States NAO, nine coincided with internal political-electoral conjunctures. In 1994, when an electoral process was commenced for the United States mid-term legislative elections, the United States NAO accepted four public communications; in 1996, the year of the presidential elections, a further two were accepted. Likewise, from November 1997 to January 1998, a period leading up to new legislative elections, and more importantly, one that also witnessed the beginning of a debate in the United States Congress on the extension of fast track negotiations for the Free Trade Zone of the Americas, three submission procedures were accepted by the United States NAO. In 1995, a politically neutral year in the United States, its NAO did not initiate a single submission procedure, while Mexico commenced the only one it has so far accepted.

The strategies employed by United States trade unions and other groups under the protection of the NAALC have reinforced mistrust and skepticism within a large part of the Mexican trade union sector; these factors have really been present since the very beginning of the Agreement. Despite the fact that they are willing to adjust their general strategies as a means of adapting to profound national and international changes, the large traditional unions which still represent the vast bulk of Mexican trade unionism do not wish to cast off measures and forms of action that have proved beneficial to the organized labor movement.

The fact that Mexican trade unionism emerged, grew, and achieved advanced labor legislation, social security, a workers' housing program and a close alliance with the post-revolutionary state is often overlooked. In contrast to its United States and Canadian counterparts, since the 1930s Mexican trade unionism has participated in the definition of the policies that have sculpted its development and are indeed important to its interests. In this sense, the Mexican workers' movement is more like the trade unionism in force in some European countries. Since the NAALC has not fully comprehended the historical role played by Mexican trade unions in the policy-making process, it therefore remains aloof and distant from the traditions of the Mexican labor movement. This is essentially a situation comprising two different political and labor cultures. The reluctance of the majority trade union organizations to accept an Agreement considered as little more than a potentially disruptive factor that could well upset the equilibrium achieved with great effort over the course of many years may consequently be understood.

Furthermore, traditional Mexican trade unionism is fully aware of the price paid by its Canadian counterpart as a result of the dependence or affiliation of its unions to United States labor organizations. It is a well-known fact that one of the most divisive topics of debate characterizing current efforts to restructure Canadian trade unionism involves the question of dependence or independence from United States trade union organizations.

However, it should be noted that there are certain exceptions to this pattern of conduct within the majority Mexican trade unions. A result of the rapid and profound political changes experienced in Mexico during the last 10 years, these exceptions are not situated within the labor-capital relationship itself, but are rather located within the trade union movement, as represented by the antagonism between the old trade unions and the new or independent organizations. The latter have discovered an additional form of action by using the NAALC submission procedures and, above all, the United States NAO to further their cause. This has even been the case when the proceedings established by Mexican law for the resolution of such conflicts are still under way and when available legal resources have yet to be exhausted. In other words, by submitting complaints before the United States NAO, the independent trade unions have sought to broaden their sphere of action vis à vis their conflict with traditional trade union organizations.

The political designs of the independent trade unions have found a certain echo and indeed reply in the protectionist dispositions of United States trade unionism. This factor has led to agreements such as the Alliance for Strategic Organization, concluded between United Electrical (UE) and the Frente Auténtico del Trabajo (Authentic Labor Front -- FAT) for the consolidation of joint action in the in-bond industries situated along the northern Mexican border. Other United States trade unions have initiated similar projects with independent Mexican organizations, especially those functioning in the areas of clothing and textile manufacture, telecommunications, foodstuffs and transportation. While the convergence of this type of interest and form of action may be clearly perceived in the submission procedures so far initiated, the fact that conflict is stressed over and above cooperation would also seem to indicate a desire to imbue the NAALC with a character that it simply does not possess.

It is therefore not coincidental that the majority of the complaints submitted before the United States NAO have focused on the freedom of trade union association (Article 49). While this is undoubtedly a highly important principle, it is not however included in the three principles considered as part of the mechanism created for the resolution of controversy (Article 27). Since trade union freedom is precisely the point of contact between the tactical interests of United States trade unionism and independent Mexican organizations, it is therefore logical that this issue serve to test the limits of the Agreement.

V. Conclusions and Recommendations

In view of the overall context I have attempted to briefly outline above, I have come to three conclusions and have decided to propose three main recommendations.

Conclusions:

1. Despite its relatively short operational period and the air of discord created by the submission procedures, the NAALC has functioned reasonably well. It is particularly important to stress the length of time for which the Agreement has functioned, since this factor constitutes the basis for our work under the terms of the mandate we received. Up until 1997, the Agreement was solely in force between Mexico and the United States, and it has only encompassed all three countries since the total incorporation of Canada during the same year.

2. Since international instruments need time to fully mature, it is undoubtedly too soon to formulate recommendations involving the in-depth modification of the Agreement. The sense of haste desired by certain national actors could well neutralize its efficiency, inasmuch as it would naturally increase the hostility of other national actors in Mexico, the United States and Canada.

3. The reality encompassed by the NAALC is far from static. The liberalization of trade between the three countries has brought about substantial changes to the labor market and has therefore affected the conduct of its leading actors, above all the trade unions, although such modifications have tended to vary in line with their different cultures and traditions. The Mexican, Canadian and United States labor movements are facing the potentially divisive and debilitating challenge of reviewing their trade union strategies, so as to adapt to the new international economic panorama. If the enforcement or modification of the NAALC were to privilege some actors over others, then the Agreement could well have a negative if not disastrous effect.

1. It would be pertinent to review the regulations governing the acceptance and processing of complaints by the NAOs, so as to attempt to separate immediate internal political considerations from proceedings that could well be crucial to the future development of social and labor policies in the three countries. In this sense, the first rule to be established would involve rejecting complaints and abstaining from initiating submission procedures when the litigation giving rise to the complaint is still under way and when legal recourses have yet to be duly exhausted.

2. It is especially important to prevent the acceptance and processing of public communications from creating expectations that may not be satisfied, since these proceedings do not constitute a supranational jurisdictional mechanism designed to correct the incidents and results stemming from judicial or quasi-judicial proceedings.

3. In general terms, it is highly recommendable that the provisions offered by the Agreement be exhaustively utilized, so as to facilitate the reduction of conflictive elements through the increase of their cooperative counterparts, which, after all, constitute the essence and basis of the NAALC.