Section II: Objectives and Obligations Under the NAALC as Benchmarks for Assessing Effective Implementation

One basis for assessing the operation and effectiveness of the NAALC thus far, then, is through evaluating its impact in furthering its own stated, fundamental goals and objectives, outlined above. In addition, however, the NAALC contains binding undertakings of the Parties in Part Two, entitled Obligations. These commitments constitute the means of advancing toward the fundamental goals contained in Part One. At the same time, fulfillment of the NAALC Part Two obligations constitute intermediate ends to be served by means of the structural provisions of Part Three, and the interpretation, application, and enforcement provisions of Parts Four and Five, addressing cooperative consultations and evaluations, and resolution of disputes. Thus the effectiveness of the NAALC can also be measured by examining how well the Commission and its constituent parts, the Council, the NAOs, and the Secretariat are performing the functions prescribed for those bodies in Parts Three through Five of the Agreement, and by how effective the entirety of their operations has been in furthering the fulfillment of the Parties' obligations set forth in Part Two.

The obligations established under Part Two include a section addressing the contents of each Party's labor standards,¹³ a section addressing government action enforcing the labor legislation,¹⁴ a section addressing provision of private, interested parties with adequate private rights of enforcement,¹⁵ and a set of procedural guarantees each Party commits to as to both public and private enforcement procedures.¹⁶ In addition, the Parties commit to transparency of law, regulatory action and adjudicatory rulings of general applicability.¹⁷ The Parties also promise efforts to enhance public information and awareness of the Party's labor law and enforcement and compliance procedures.¹⁸

The obligations are premised on full preservation of the sovereignty of each Party in establishing or changing its own labor policy, legislation, and regulation.¹⁹ As to substantive labor law, the Agreement mandates only that "each Party shall ensure that its labor laws and regulations provide for high labor standards, consistent with high quality and productivity workplaces, and shall continue to strive to improve those standards in that light."²⁰

As to enforcement of domestic labor law, each Party commits to "promote compliance with and effectively enforce its labor law through appropriate government action," such as training and appointing inspectors, conducting on-site inspections, seeking voluntary compliance, mandating record keeping and reporting, investigating alleged violations, providing or encouraging dispute resolution services, and commencing appropriate proceedings for redress against labor law violators.²¹ The Parties also obligate themselves to provide private parties legally interested in a given matter with "appropriate access to administrative, quasi-judicial, judicial or labor tribunals" to enforce their rights under domestic labor law.²² At a minimum, each Party undertakes to maintain appropriate procedures under their domestic law by which such private actors may enforce rights arising under collective agreements as well as those arising under domestic labor law.²³ Finally, as to such procedures for public or private enforcement of domestic labor law, each Party commits to ensuring due process and other procedural guarantees,²⁴ as well as to legal transparency through publication and public dissemination of laws and legal rulings,²⁵ and to public information about labor rights.²⁶

The reservation of full sovereignty in terms of each Party's control over the terms of its own labor legislation is amplified by the provisions of the Agreement governing its interpretation, application, and enforcement. The NAALC is not "horizontally enforceable," that is, it provides no private cause of action between nongovernmental actors when rights assured to them by the NAALC have been violated by other private actors. The NAALC imposes no legally binding obligations on private actors. Moreover, the text of the Agreement eschews any possibility of its use to directly or collaterally appeal the outcome of particular domestic labor law proceedings.²⁷

Nor is the NAALC vertically enforceable; a private actor whose interest is injured by the breach by a Party of a NAALC obligation has no private cause of action for redress against their government. Whether a citizen is claiming that her own government has failed to enforce a labor law and thereby injured her, or she is claiming that a different NAFTA Party has failed to enforce its labor law against, for example, the complainant's competitor, thereby injuring her, the NAALC creates no private right of action against the breaching Party country.

Indeed, it is fair to suggest that the NAALC interpretation, application and enforcement process is concerned with patterns of breach and systemic failures. Its goal is to foster improved compliance with domestically adopted labor rights, both through voluntary means and through public and private enforcement, and to further domestic incorporation and implementation of the 11 guiding Labor Principles.

Evaluation of the operation of the NAALC thus entails an inquiry into whether the present NAALC structures and instrumentalities are soundly performing the roles allotted to them under the Agreement, whether improvements could be effectuated within the present framework, and the extent to which even the optimum functioning of the current framework may be insufficient to serve its own stated objectives.