Part Two: Highlights of Consultation Process

The consultation process for the review of the North American Agreement on Labor Cooperation adopted by the Council of Ministers included the following elements:

1. Each Party would request comments from its Governmental and National Advisory Committees and transmit these to the Secretariat.
2. Each Party would name a nongovernmental labor expert to serve on a Review Committee which would prepare an independent Advisory Report to the Council.
3. The Commission would issue an invitation to the public to submit written comments to the Secretariat or the various National Administrative Offices, who would transmit these to the Secretariat.

The specific recommendations from 1 and 2 above are reproduced below under the heading, Recommendations of Advisory Bodies. The following are brief accounts of the contributors to the consultation process.

National Advisory Committees

Article 17 of the NAALC stipulates: "Each Party may convene a National Advisory Committee, comprising members of the public, including representatives of its labor and business organizations and other persons, to advise it on the implementation and further elaboration of this Agreement."

Both the United States and Mexico had established such committees at the time of this review, and both Committees submitted comments as a contribution to the review of the NAALC. These comments are attached as Annexes 2 and 3.

The members of the United States National Advisory Committee are:

Marley S. Weiss, Chair
University of Maryland School of Law

Steven M. Beckman
International Union of United Automobile, Aerospace and Agricultural Implement Workers of America

Carroll E. Bostic
Eastman Kodak Co.

Edward A. Brill
Proskauer, Rose, Goetz, and Mendelsohn

John S. Gaal
United Brotherhood of Carpenters and Joiners of America

Abraham Katz
U.S. Council for International Business

Thea Lee
American Federation of Labor - Congress of Industrial Organizations (AFL-CIO)

Mark Levinson
Union of Needletrades Industrial and Textile Employees (UNITE)

Margaret E. Montoya
University of New Mexico School of Law

Maria L. Ontiveros
Golden Gate University School of Law

Edward Potter
McGuiness and Williams

Edward Williams
University of Arizona

The members of the Mexican National Advisory Committee are:

Juan Moisés Calleja García
Secretary General
Instituto Mexicano del Seguro Social (IMSS)

Netzahualcóyotl de la Vega García
Secretary General
Sindicato de Trabajadores de la Industria de la Radio y Televisión

Roberto Castellanos Tovar
Secretary General
Confederación Revolucionaria de Obreros y Campesinos del estado de Quintana Roo

Alfonso Reyes Medrano
Undersecretary of Economic Affairs
Confederación de Trabajadores de México (CTM)

José Ramírez Gamero
Secretary General
Sindicato de Trabajadores de la Industria Autotransporte, Federación de Trabajadores del Estado de Durango

Jorge de Regil Gómez Muriel
Associate
Baker and McKenzie, S.C

Adolfo Tena Morelos
General Director
Natividad Abogados, S.C.

Octavio Carvajal Bustamante
General Director
Carvajal Abogados y Asociados, S.C:

Canada has recently established a National Advisory Committee, but it was not functioning during this review. The members of the Canadian National Advisory Committee are:

Waldron Fox Decent (Chair)
Workers' Compensation Board of Manitoba

Sue Heron-Herbert
Consultant

Ian T. Howcroft
Alliance of Manufacturers and Exporters Canada

Aldéa Landry
Landal, Inc.

Richard Martin
Canadian Labour Congress

Jean-Pierre Néron
Advisor to Quebec Federation of Labour

Jean-Louis Poirier
Bombardier, Inc.

Donald Ritz
Syncrude Canada, Ltd.

George C.B. Smith
Federal Employers -Transportation and Communication (FETCO)

Jeffrey Sack and Claude Melançon (alternates)
Canadian Association of Labour Lawyers

Governmental Committees

Article 18 stipulates: "Each Party may convene a Governmental Committee, which may comprise or include representatives of federal and state or provincial government, to advise it on the implementation and further elaboration of this Agreement."

Mexico has established a Governmental Committee comprising representatives of federal, state and municipal levels of government, which submitted written comments as a contribution to this review, and these are available from the Secretariat and the Mexican NAO. The members of this committee are:

Undersecretary of Labor
Secretariat of Labor and Social Welfare

Undersecretary of Training, Productivity and Employment
Secretariat of Labor and Social Welfare

Undersecretary of Social Welfare
Secretariat of Labor and Social Welfare

Coordinator General of International Affairs
Secretariat of Labor and Social Welfare

Undersecretary of International Trade Negotiations
Secretariat of Commerce and Industrial Development

Undersecretary of Bilateral Relations
Secretariat of Foreign Relations

Representative of State Government (State of Chihuahua)
Representative of Local Government (City of Juárez)

Canada has also established a Governmental Committee composed of federal and provincial representatives whose mandate is further defined in an intergovernmental agreement between the Government of Canada and provincial governments. This committee did not submit written comments but has functioned as an ongoing forum as part of the participation of the Minister of Labour of Canada in this review. The provincial labour departments that participate in the Governmental Committee are:

Alberta Labour
Alberta

Ministry of Skills, Training and Labour
British Columbia

Manitoba Department of Labour
Manitoba

Department of Provincial Affairs and Attorney General
Prince Edward Island

Department of Labour
New Brunswick

Department of Environment and Labour
Newfoundland

Department of Safety and Public Services
Government of Northwest Territories

Department of Labour
Nova Scotia

Ministry of Labour
Ontario

Ministère du Travail
Quebec

Saskatchewan Labour
Saskatchewan

Department of Justice
Government of Yukon

As its Governmental Committee, the United States has established an interagency working group through which the Department of Labor consults with other interested federal agencies. The following agencies are represented on this U.S. Governmental Committee:

U.S. Department of Commerce
Environmental Protection Agency
National Labor Relations Board
National Economic Council
Department of State
Office of Management and Budget
Department of the Treasury
United States Trade Representative

Review Committee of Experts

The Review Committee of Experts was appointed in December 1997 and was asked to complete its report by the end of April 1998. The experts were permitted to define their own methodology or a pproach to their task, being provided only with the "Process for Review of the NAALC" adopted by the Council of Ministers as terms of reference. The Secretariat supported the Review Committee of Experts by supplying literature and documentation, arranging meetings, etc. The Committee met twice at the Secretariat's Dallas office and conducted a number of conference calls. The experts drafted their report themselves, which is attached as Annex 1.

The members of the Review Committee of Experts were:

Professor Luis Medina, Centro de Investigación y Docencia Económica (Mexico)
Professsor Clyde Summers, University of Pennsylvania Law School (United States)
Professor Pierre Verge, Laval University Faculty of Law (Canada)

Public Comments

Written comments from the public were invited in the following ways:

The Secretariat issued a news release and sent letters to all names on its extensive mailing list. Each Party also publicized the public invitation to submit comments in different ways. Notice in the Federal Register was used in the United States. Canada posted the invitation for public comments on its Internet homepage and in addition requested comments from representatives of provincial governments and labour, business and academic groups. The National Administrative Office of Mexico posted an invitation on its Internet homepage and sent a questionnaire to over 500 individuals in government, business, labor and academia who had participated in NAALC-related activities. The Mexican NAO received 115 responses to the questionnaire. A copy of the survey and results are reported in Annex 4. All public comments are presented verbatim in Annex 5.

Survey of Literature

The Secretariat conducted a review of non-journalistic materials related to the NAALC published in all three countries. Attention was restricted to articles published after January 1, 1994, which specifically addressed the NAALC, and particular attention was paid to those which provided analysis of the actual operations and effectiveness of the Agreement.

Governmental and nongovernmental experts were consulted on the list of articles in order to attempt to cover as many relevant materials as possible. Nonetheless, it is possible some elevant articles were omitted. The bibliography of materials surveyed is included as Annex 6.

Over 100 published articles were reviewed, about 60 percent by U.S.-based authors and 15 percent each by Mexico and Canada-based authors. A small number of articles were produced by individuals and organizations outside North America. Many of the authors have been involved as participants in NAALC-related events and procedures, and others are current or former government officials involved with the NAALC in some capacity.

B. Summary of Themes

Introduction

Taking into account the public comments and the Mexican NAO survey, the reports of the various advisory committees, including the Governmental Committees, and the thousands of pages of literature which have been canvassed, a great volume of analysis and opinion related to the NAALC has been surveyed in this review and is now in the public domain. Attached to this report itself are the reports of the National Advisory Committees established under the NAALC, as well as the report of the special Review Committee of Experts. Written public comments on the review of the NAALC were made available earlier by all three Parties and are included in Annex 5. The survey carried out by the Mexican NAO has been analyzed in detail separately in Annex 4. A bibliography of the literature reviewed is included in Annex 6.

An attempt is not made here to summarize all of this input and discussion in a way that would restate the key points made by the different authors and sources. Such a summary would almost necessarily be inadequate, misrepresenting some or giving too much importance to the arguments of others.

Instead, the following is a relatively brief analytic description of what appear to be the main themes or concerns which emerged in this body of commentary. Arguments are not ascribed to particular sources, nor are footnote references provided. The objective here has been to present a generic overview of the main arguments and points of view that are present in the total body of commentary on the NAALC, regardless of the particular source of the argument or viewpoint. Moreover, this analysis of themes is not totally dependent on the materials reviewed; it includes as well some contribution of the Secretariat intended to "round out" the discussion of the theme with the objective of fully representing the rationale and structure of the NAALC and relating arguments to it.

The identification of these six themes was made in the following way: based on a reading of all of the inputs and articles, an initial list of commonly occurring issues was drawn up. All materials were then reviewed again and a count was made of the number of times each issue was addressed in any input from any point of view. Closely related issues were combined into six general "clusters" which included almost all of the issues counted. Each of these clusters has been treated as a more or less coherent "theme" below. These counts do not, of course, determine the real or relative importance of these themes, but they do serve as a preliminary way of identifying the main preoccupations related to the NAALC. Although this methodology was analytic and internally consistent, it is also inevitably somewhat subjective; as a result we have not considered it useful or necessary to report the actual number of references under the various headings.

Themes

1. The nature of the different processes established by the Parties for reviewing and responding to public communications.
2. The nature of the processes established in the NAALC for consultation, evaluation and dispute resolution.
3. The restriction of ECEs and dispute resolution to certain areas of labor law.
4. The reliance in the NAALC on domestic laws as opposed to international standards.
5. The question of private rights and individual remedies.
6. The NAALC as a framework for international cooperation.

As can be seen in C below (Recommendations of Advisory Bodies) and in Annex 5, recommendations are often much more specific in nature than the level of discussion that is presented under the general themes. Their importance should not be minimized for the simple reason that they are specific rather than general and may not be mentioned in the description of any particular theme. In fact, recommendations normally do relate to one of the general themes and they have been organized below according to the six themes. To obtain the proponents' rationale for the recommendations readers should refer to the original source documents.

1. NAO Processes for Responding to Public Communications

   The NAALC is an intergovernmental Agreement, providing a set of government-to-government obligations, commitments and procedures and providing for a governmental Council of Ministers to both constitute, with the Secretariat, the Commission for Labor Cooperation and oversee the Agreement. Unlike the International Labor Office, for example, nongovernmental representatives from business and labor do not have a governing body role in the Commission.

   However, the NAALC does create a special channel for direct public participation. Article 16 (3) instructs each National Administrative Office "to provide for the submission and receipt of public communications on labor law matters arising in the territory of another Party." In fact each NAO has now defined and published guidelines for the "submission and receipt" of public communications, and they do differ in important aspects in accordance with different national institutional traditions.

   The public is thus invited by the Agreement to communicate with each government or Party concerning "labor law matters" in a different country. This is an important innovation in international relations in North America created by the NAALC. It creates a formal mechanism for members of the public of one country to raise issues of concern to them which exist or occur in another country. By implication it also creates a type of political accountability of each government to respond to the public communications which it receives and places a similar type of political onus on all the Parties to work together to respond to each other in the management of such public communications which have been received by one or more of them.

   The issues raised are problematic ones in the eyes of the public sponsors of the communications, and they are seeking the active participation of the government to which they submit their communication in obtaining more information about these perceived problematic matters and in resolving underlying problems if they do indeed exist. Public communications have generated a great deal of public interest and a considerable attention by the media.

   The public communications process is the center of a debate with a variety of different and often conflicting points of view. The words of the NAALC regarding what may be the subjects of public communications are obviously very broad; "labor law matters" and how and whether a government through its NAO should respond to any particular type of communication simply are not defined at all.

   Some have argued that the NAOs should be more selective in accepting public communications, ruling out those which contain certain implications that could be viewed as going beyond the NAALC (such as an implication that a government's labor laws or administrative systems should be changed). On the other hand, refusing to proceed with public communications has resulted in strenuous objections that this important provision of the Agreement is being frustrated. This point of view assumes the governments have a general obligation by the very design of the NAALC to accept and treat seriously virtually all public communications which raise substantive issues, given the apparent importance the sponsors attach to these issues. Experience to date has shown that sponsors of public communications have invested much time and effort into the preparation of the communications, including substantial efforts to gather information in the form of personal testimonies, as well as consulting literature, reviewing laws and jurisprudence, etc.

   All of the public communications submitted to date have raised concerns regarding a lack of enforcement of labor laws (although there is no such restriction in the NAALC) referring themselves to the obligations contained in Part Two of the Agreement. The majority have made some particular situation or event or decision of a labor authority or violations by private parties their central focus. Some observers find this pattern itself problematic, as they fear it leads to a review process which appears to reexamine the merits of an individual case and would prefer that public communications be based on patterns of events. (It is worth noting in this regard that "patterns of practice" are specified in the NAALC as the object of review by ECEs and dispute resolution panels.) Although a review of a public communication has no legal status and cannot reopen or overturn any decision of any labor authority of any Party, this point of view is concerned about undue international political influence on domestic proceedings: "decisions by each Party's administrative, quasi-judicial, judicial or labor tribunals, or pending decisions, as well as related proceedings shall not be subject to revision or reopened under the provisions of this Agreement" (Article 5(8)).

   On the other hand, other comments focus on the value of the public communication process precisely because it has been so specific and grounded in actual events. They argue that this is what the so-called "sunshine" effect was meant to achieve, namely a heightened sensitivity to labor rights on the part of individual employers, unions and government officials because of the possibility of the "spotlight" of public attention falling on any particular situation.

   The use of public hearings within the process of reviewing a public submission has been debated along similar lines and is probably the most focused point of debate about these processes. Some suggest that the use of the public hearing format gives a quasi-judicial appearance to a process that is not legally adjudicative nor meant to be. It has also been suggested that this format may raise unfounded expectations that the process has the potential to rectify the particular situation that is being examined.

   Others argue that such public hearings have proved to be the most important element of the public communication process by providing a new forum for public disclosure and debate and, as such, provide an essential form of public expression on the matter at issue. They consider that the format generates new testimonial information, provides transparency to the review process, and attracts public interest.

   Observers have noted the relatively low extent of participation by business or management in the public communication process, both in not initiating communications and in participating minimally in their review. It has been suggested this may lead to an imbalance in the information collected in the review process, which may overly rely on information supplied by the petitioners. However, it has also been pointed out that the focus of public communications should be, following the structure of the NAALC, on government responsibilities for the administration of labor law rather than on the actions of individual employers. The record shows that the NAOs have made efforts to invite relevant information from all interested parties, including participation in public hearings when they occur, and to seek additional information from expert sources.

   The NAALC was deliberately framed to leave the design of the public communication process to each Party to define for itself, in recognition of the fact that such processes will be judged in the light of different national and even cultural norms.

2. NAALC Processes for Evaluations and Dispute Resolution

   The NAALC contains formal processes for independent analysis of the enforcement of labor laws (excluding laws related to the first three Labor Principles of the NAALC - see discussion below) using Evaluation Committees of Experts (ECEs) and for the resolution of disputes related to three specific areas of labor law using Arbitral Panels. Neither of these processes or bodies has yet been initiated; nevertheless, there has been considerable commentary on them in concept.

   Certain critics of the Agreement argue that the definitions and qualifications attached to the process are too restrictive. Some of the most important aspects of the NAALC included in this criticism are that labor matters must be "trade-related" and "mutually recognized" in order to become the subjects of ECEs or dispute resolution processes. The trade-related requirement relates to the fact that the NAALC is a companion to the NAFTA and its intervention into domestic affairs is justified on the basis of a special trade relationship. The mutual recognition qualification is intended to prevent the situation that a country with more or higher labor standards would be "penalized" under the Agreement by having higher obligations than the other Parties. It ensures a balance of the obligations among the Parties.

   There has been criticism that the NAALC processes taken together are excessively long and complex and that if a matter was to proceed through such a process it would require several years. The criticisms about a long and cumbersome process relate mainly to the fact that it is impossible to move to binding arbitration (dispute resolution) without first passing through Ministerial Consultations and then evaluations, processes which themselves are lengthy. It is also sometimes objected that only governments can initiate these procedures.

   The criticism about the "long and cumbersome" processes of the NAALC deserves a clarifying comment. These processes do not adjudicate or enforce the rights of individuals in specific circumstances or particular cases. Specific corrective action, if warranted, would depend on completely separate and independent procedures internal to each Party.

   These NAALC procedures involve sovereign governments in the discussion, investigation and resolution of major governmental responsibilities and may have broad implications for administrative and judicial process or for policy and the interpretation of legislation. The procedures must move at a deliberate pace with full opportunity for consultation to ensure complete understanding of matters which are by nature middle to long term.

   Regarding the question of governmental versus private initiative in the procedures, naturally private individuals may challenge their own domestic governments through their domestic political and legal channels. But at the international level in the NAALC governments have not created any accountability to private parties in another country but only to the other governmental Parties.

   There have been one or two other subthemes mentioned in this area. One such concerns the fact that the guiding principle of Part Four: Cooperative Consultations and Evaluations (which includes both Ministerial Consultations and Evaluation Committees of Experts) is expressed in Article 20. This states that the Parties shall "make every attempt through cooperation and consultation to resolve any matter that might affect [the Agreement's] operation." The concern here is to avoid adversarialism in the operation of this Part of the Agreement and to seek to resolve issues through consultation and cooperation as much as possible. Naturally such an argument cuts both ways and requires that all Parties engaged in "Cooperative Consultations and Evaluations" work actively and constructively to resolve the issues that are brought forward by any Party.

   It has also been commented that the Parties are able to request Ministerial Consultations and Evaluation Committees of Experts on their own initiative and need not restrict themselves to using these procedures as a means of responding to public communications. Indeed there is no reference to these procedures in the provision of the Agreement dealing with public communications and no reference to public communications in the provisions dealing with consultations and evaluations. In this context the question has arisen in some commentaries as to whether the Parties should be more "proactive" in using these provisions of the Agreement, bearing in mind that they are nonadversarial in nature, and thereby exercise the Agreement to its full extent. It has been pointed out that the ECE process is a unique new tool to bring an international comparative perspective to examine the actual putting into practice of labor legislation. Of course an ECE would involve independent evaluation of patterns of practice of all the Parties, possibly entailing further consequences and involving some not insignificant costs. This implies the need for caution by the Parties, including making every effort to resolve matters through consultations.

   Finally, the question of "results" must be discussed. It has been put forward that only the dispute resolution process of the NAALC can guarantee results, in the sense of obtaining formal orders for corrective action backed up by sanctions. Others recognize that the Ministerial Consultations and evaluations procedures do also produce results, but of a different nature. Here, however, some warn that there is a risk of public frustration with the NAALC's mechanisms if the procedures which rely on voluntary action by the Parties for results do not lead to concrete measures when significant problems have been identified.

3. The Restriction of ECEs and Dispute Resolution to Certain Areas of Labor Law

   The NAALC defines the body of labor law as "laws and regulations that are directly related to" the 11 Labor Principles that are set out in Annex I of the Agreement. ECEs are restricted to labor laws that relate to the last eight of these principles (principles d through k). The first three principles, for which ECEs cannot be established, relate to freedom of association and protection of the right to organize, the right to bargain collectively, and the right to strike.

   Another common criticism of the NAALC is the fact that the ECE process for international comparative evaluation of the administration of labor law cannot be used with reference to what many believe to be the most important set of labor laws. This point of view takes into account the fact that public communications over the past four years have, in most cases, related to the first three Labor Principles, as well as some others, indicating that this is a central focus of public interest under the Agreement. The lack of application of ECEs to this area is seen by some as a serious weakness in the Agreement's scope of application. Others argue, to the contrary, that the ECE process should not be extended to include labor relations as it might interfere in domestic legal processes. The importance of the nonadversarial character of the ECE has also been stressed in this context.

   Often the argument to expand the scope of ECEs is combined with the position that all of the Labor Principles in the NAALC should be amenable to the same forms of treatment; i.e., including dispute resolution. But there is a special case often made regarding ECEs, since they are explicitly defined in the Agreement as "nonadversarial," cover all three Parties at once, and cannot lend themselves to binding orders or sanctions (which would require a subsequent process initiated by two-thirds of the Council).

   Some concern has been expressed that extending ECEs would permit opponents of free trade to attempt to use the process for protectionist purposes. On this point it must be noted, however, that the ECE process does not contain the possibility of an enforceable order supported by a trade sanction, which is reserved to the dispute resolution process alone. Moreover, private parties who may be opposed to free trade cannot initiate an ECE; only governments themselves can do so.

   A final consideration in this discussion is the experience over the past four years with Ministerial Consultations relating to the first three NAALC principles. The record shows that the Parties have taken a substantive and publicly oriented approach to their consultations, concluding each set of consultations with follow up actions, including academic studies, public forums, seminars and conferences, and a "special study" by the Secretariat under the provisions of Article 14 (2). The fact that the ECE process does not extend to these matters has made the Ministerial Consultation process all the more important in this regard, and the Parties have demonstrated an apparent consciousness of this fact.

4. Reliance on Domestic Laws versus International Standards

   The obligations of the NAALC are to ensure the effective enforcement of domestic labor laws; there is no adoption of or reliance on international standards. In taking this approach the NAALC departs from the standard model of international labor rights set by the International Labor Organization, which has been in existence for over 75 years. The ILO has developed an extensive corpus of international labor standards, the ILO Conventions, which member states are encouraged to voluntarily ratify. The ILO monitors the performance of member states against their ratified Conventions, evaluating whether national legislation and practice is in conformity with the obligations of the Convention. No sanctions are attached to ILO monitoring. All three NAALC Parties are members of the ILO.

   The NAALC does not replicate this structure. Instead it sets out a set of six obligations which serve to define what is meant in the Agreement by "effective enforcement of domestic legislation." The Parties themselves then hold each other accountable to their common obligations using the mechanisms of consultations, evaluations and dispute resolution.

   The NAALC takes as a given point of departure the existence of well-developed bodies of labor law in each of the North American nations. It leaves the further evolution of that legislation to the democratic process in each country, in the sense that there is no NAALC requirement that domestic legislation be in conformity with international standards.

   The criticism of the NAALC for its reliance on domestic law rather than international standards is essentially that it does not therefore prevent governments from lowering their domestic standards (or "levels of protection") by statutory change and, the other side of the same coin, that it does nothing to force governments to raise their standards to a common level. It is sometimes noted in this context that the NAFTA itself contains a provision (in Chapter Eleven on Investment) to discourage nations from reducing environmental standards or safety and health standards in order to attract investment. It has also been noted that the public attention and institutional support brought by the NAALC to labor rights and labor issues and their relevance to international trade is in a general way a preventative for lowering standards.

   However, the NAALC Parties do undertake general commitments in the Agreement which are not limited to the specific provisions of existing legislation but are broader in nature. In Article 1: Objectives, the Parties agree to "promote, to the maximum extent possible, the labor principles set out in Annex 1." And in Article 2: Levels of Protection, the Parties agree as follows: "Affirming full respect for each party's constitution, and recognizing the right of each Party to establish its own domestic labor standards, and to adopt or modify accordingly its labor laws and regulations, 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." These commitments are expressed in the important Objectives and Obligations parts of the Agreement and, although they may not be the subject of ECEs or dispute resolution processes, they are clearly integral to the fundamental agreement between the Parties.

   It is important to stress in this discussion that, in the model of the ILO, adoption of international standards is voluntary for each state; i.e., governments choose the Conventions they ratify (ratifications by Mexico -76, by Canada - 29, by U.S. - 12). In the NAALC, on the other hand, the full range of labor laws of each Party are covered by the Obligations regarding effective enforcement, although different sets of laws are subject to different methods of review and follow-up.

   The crux of the issue of international standards is the fact that the NAALC's obligations are both nonvoluntary (i.e., governments cannot choose the areas of law to which they will apply) and subject to sanctions in three important areas of law: child labor, occupational safety and health, and minimum wage. Each of these aspects constitutes a substantial departure from the traditional ILO model, and both separately and together they have important ramifications for the question of international standards.

   As noted by many commentators, the NAALC is clearly based on a fundamental recognition of the sovereignty of the Parties in the labor area (e.g., Article 2 cited above). To combine the NAALC's approach to binding obligations with the use of international standards rather than domestic laws would run counter to this fundamental concern for sovereignty.

   However, it should not be overlooked that the comprehensive and in some instances even sanctionable obligations of the NAALC are combined with domestic legislation in a way that provides a new international discipline regarding the enforcement of domestic labor law. This in effect establishes an international support for the rule of law in the labor field, while preserving full respect for domestic sovereignty over the legislative process.

   The objectives and mechanisms of the NAALC are obviously different from the international standards approach and constitute an innovation in international labor affairs. One focuses on the enforcement of domestic law and the other on commonality of international standards, but both emphasize the adoption of provisions to ensure rights of workers and commitment to strive to improve their working conditions.

5. Private Rights and Individual Remedies

   Before turning to public comments, a few introductory observations on this subject are useful. The NAALC does not create a mechanism for individuals to pursue private rights and seek individual remedies. The procedures of the NAALC are government to government in nature and relate strictly to the terms of the Agreement. The NAALC's own obligations, as well as its procedures of Evaluation Committees of Experts and dispute resolution, are systemic in nature; i.e., a government's general system of administration of labor law (as evidenced in patterns of practice) is what is under consideration.

   Private rights must therefore be pursued under domestic law within the administrative mechanisms and tribunals available in each country. Under Article 4 the Parties accept the obligation to ensure that persons have appropriate access to such mechanisms and tribunals in order to ensure that their rights are enforced, and in Article 5 the Parties accept further obligations regarding procedural guarantees. But these obligations do not create any rights of private action or determine any specific procedures in themselves. To emphasize this point, the last paragraph of Article 5 adds that decisions and proceedings of a Party's labor authorities "shall not be subject to revision or reopened under the provisions of this Agreement." In other words, there is no appeal process created by the Agreement.

   In the commentary on the NAALC, there is one body of argument that finds this approach to be a weakness in the NAALC and calls for a power at the international level to overturn decisions of national administrative agencies or tribunals or even courts, either on the basis of a different interpretation of domestic law or by applying international standards, or by applying the NAALC's own Labor Principles as superseding domestic law. This position would have the NAALC include the power to award individual remedies, such as ordering the reinstatement of a worker to a job or the recognition of a union.

   This appears to be one interpretation of what is a fairly common expression in public comments, namely the call for "enforceable international standards," although it is obviously not the only interpretation of that expression. It has been observed that such a power would have enormous constitutional, political and sovereignty implications in all of the NAALC countries. And it is worth adding it would also have vast practical implications, as such an international appeal mechanism could in principle be accessed by over 175 million workers in North America under a multiplicity of different national and subnational systems of labor law and administration.

   The other aspect of debate in this context concerns the treatment of public communications that focus on individual cases or circumstances, which has been a common feature of public communications to date. This point has been mentioned above under item 2 (NAO Processes for Responding to Public Communications) and item 3 (NAALC Processes for Evaluations and Dispute Resolution). The concern of some commentators, as mentioned, is with the need to avoid the appearance of "reopening" a decision and that the review of such public communications should not interfere with domestic legal procedures which may be treating the same matter.

   Notwithstanding that the NAALC cannot establish an appeal mechanism, the concern has been expressed that the public should not be led to believe that the NAALC is an appeal body, that the Parties should continue to make this clear in their handling of public communications.

   Some observers object that some public communications have focused more on the actions of employers than on the responsibilities of governments. The basic fact is that the public sponsors and not the governments have defined the nature of the communications they will submit. The NAALC itself is quite open-ended in this regard, calling simply for public communications on "labor law matters arising in the territory of another Party." It is by now obvious, based on the experience of the past four years, that some if not most public communications will tend to be built around specific circumstances brought forward by the sponsors with a view to illustrating a general concern. The educational and public awareness value of the public communications has been noted, together with the observation that both public interest and comprehensibility depend on the specificity of the circumstances. Additionally, some observers have expressed the opinion that public communications have been used by some submitters to attempt to influence domestic processes.

6. The NAALC as a Framework for International Cooperation

   Unlike the foregoing themes, the body of commentary regarding international cooperation does not admit of a similar description in the form of a coherent set of competing arguments around a common question. It takes the form instead of a broader, more generalized set of comments, even aspirations, concerning the recognized value of cooperation under the NAALC and the need to enhance it. It has been placed in last position in this summary of themes not because it is less important - indeed it may be most important and is certainly most pervasive - but because it has this different quality of being general rather than pointed.

   There is a broad consensus of opinion that the NAALC has established a much needed and important new institutional framework for international cooperation in the labor area. This need arises naturally out of the increasing integration of the North American economy and the mutual interdependency and transnational impacts which that integration brings to the national labor markets and to the application of labor rights and labor regulation throughout the region.

   Coordination and cooperation among governments is recognized as important for a number of purposes, at the least these:

   • the provision and improvement of basic information;
   • addressing issues of common concern; e.g., the improvement of analysis and understanding of the functioning of the region's labor markets as a totality, sharing best practices regarding labor market development and labor regulation, addressing transnational labor issues, such as migrant labor or the functioning of border labor markets;
   • the maintenance of consistently high standards of labor law enforcement throughout the region to underpin confidence in the trading system of the NAFTA.

   Each of these purposes is discussed briefly below. It should be noted that, while there is a strong consensus on the need and value of international cooperation for the above purposes, many commentators do not believe that the NAALC has yet achieved its potential in this regard or sufficiently met the need, even though important progress has been made. This point is reviewed at the end of these comments.

   Basic information: The NAALC contains a substantial number of important references to improving the availability of information (see, for example, Articles 1, 6, 7, 10, 11, 14, 21)

   Basic information falls into several categories. First, information on the legal and regulatory systems in the labor area in each country, and here all parts of the NAALC have been found to make an important contribution, from the cooperative activities organized by the NAOs to the public communications processes and ensuing consultations, to the research work of the Secretariat.

   Second, information regarding administrative and adjudicative procedures has also been identified as extremely important. Indeed, the information function in the sense of "transparency" and "sunshine" has been found by a number of observers to be one of the most important features of the Agreement, and one which should lead to real improvements in the quality of public administration of labor laws in all parts of North America over the long term. The value of such information is recognized in Article 1 as one of the basic objectives of the NAALC: "[to] encourage publication and the exchange of information," and "[to] foster transparency in the administration of labor law."

   Third, closely related to the above information is administrative data regarding the enforcement of labor laws. The need for more and better information of this type has been pointed out, and the fact that the NAALC makes provision for this information (for example, in the work of the Secretariat under Article 14) has been considered an important benefit of the Agreement. The Secretariat's study Plant Closings and Labor Rights has been found to be a good example.

   Finally, basic information is also needed in regard to the performance of the labor markets. Here the importance of better internationally comparative information has been noted as well as the need for more information at the workplace level regarding such vital labor market development issues as training and work organization. Again the NAALC is seen as having the potential to achieve progress here, and the Secretariat's North American Labor Markets: A Comparative Profile has been recognized.

   Issues of common concern: The need for basic information is an important example of, and is connected to the need for, collective attention of the governments of North America to issues of common concern, whether the interactions of the national labor markets and the ways in which they can affect each other, or addressing common challenges ranging from child labor to nonstandard work. Observers acknowledge that many (certainly not all) of these areas of common concern have been addressed cooperatively in some way over the past four years to some extent. Commentators have also pointed to a number of areas that have not been addressed, such as migrant workers, the implementation of employment standards, cross-border labor issues, or problems related to discrimination in employment. There appears to be wide recognition of relatively untapped potential in this area.

   High standards in labor law administration: A major emphasis has been given to international cooperation in regard to the administration of legal protections related to occupational health and safety. The NAALC Parties have established a North American Occupational Health and Safety Week, and many conferences, seminars and workshops have been held to promote the exchange of information and discussion of topics of common concern. Again, observers see an area of potential here that has yet to be fully developed. For instance, it has been suggested that the Council should improve the availability of comparable data on enforcement, labor standards and labor market indicators in order to enable a better evaluation of the effectiveness of enforcement and to promote its improvement over time.

   As indicated there is a broad consensus on the importance and even necessity of international cooperation in regard to labor matters in North America. Yet there also seems to be a consensus, for various reasons, that international cooperation under the NAALC has not yet reached the stage of development that is needed and even expected. A variety of comments and suggestions have been made to improve cooperation under the Agreement:
   • There is some argument that the overall focus of attention under the NAALC has been dominated by controversial public complaints about labor law enforcement to the detriment of concerted cooperative action.
   • It has been suggested there is a need for greater resources to be devoted to cooperation, including resources for the work of the trinational Secretariat as an institutionally cooperative instrument. Some also see a need to better define the mission for the Secretariat to make an important and original contribution to the work of the Commission under the NAALC. However, others want the Secretariat to remain a small office acting simply as the administrative arm of the Council of Ministers and supporting the NAOs in their cooperative activities.
   • Some have suggested that there needs to be greater follow-up by the governments working collaboratively on issues that have been raised through various NAALC initiatives, whether cooperative activities such as conferences and seminars or Ministerial Consultations held in response to public communications. It has also been recommended that there be better dissemination of the proceedings and results of cooperative activities. Some suggest greater inclusion of nongovernmental representatives in the design of the cooperative activities program, through trinational participation, while others believe that such participation can be best achieved through each country´s institutions.
   • There have been suggestions for a more substantive, problem-solving agenda than the information exchange and educational purposes which have tended to characterize cooperative activities thus far. In addition there have been calls for the development of comparative studies on a North America-wide basis related to the application and enforcement of labor laws and to legal and administrative matters, as well as for socioeconomic and empirical research.

   Apart from the debate about resources and greater public involvement, there seems to be common recognition that the institutional framework of the NAALC - the Council of Ministers, the Secretariat and the NAOs - is adequate and suitable to achieve the objectives of such cooperation. Beginning with the direct personal involvement of the highest governmental policy and decision makers on the governing body (the Ministers), and having available both a neutral trinational Secretariat, responsible to the Council of Ministers as a whole, as well as National Administrative Offices which are parts of and can involve and commit national administrations, all together have been found to be a fully developed institutional framework for substantial international cooperation.

   Concluding Comments It bears restating that the above discussion of themes cannot pretend to cover the range and depth of the materials that have been reviewed. But there is one important dimension to the review process which has not been mentioned, yet is correctly considered critical by various sources. That is the question of criteria: by what criteria should the "operation and effectiveness of the NAALC" be measured?

   Some would say that if there are workers who have been treated unfairly anywhere in North America and who cannot obtain justice under the NAALC then the NAALC is ineffective. Others would say that if the NAALC does not supply an international regime that is superior to the national labor codes then it has added nothing to labor rights in North America. Others argue that if the NAALC has not prevented or compensated for the loss of jobs due to trade-induced dislocations then it has little value.

   There are some who acknowledge that both objectives and means which can be pursued in international affairs are fundamentally different from those which operate within the borders of a single national sovereignty. There are also some who suggest that the NAALC should be evaluated within its own terms: are its basic objectives as expressed in Part One being fulfilled? Are its procedures in Parts Four and Five adequately supporting its obligations in Part Two? Are its institutions in Part Three functioning effectively? This latter perspective has been the operative one for the Secretariat in preparing this report.

   The above criteria concern the overall structure and purpose of the NAALC, but there are other criteria which could be raised to evaluate it in more operational terms, such as timeliness, accessibility, resources and transparency. To these criteria must be added the time element; i.e., the fact that the NAALC, which constitutes a new and important stage in international relations in North America, has been operational for only four years.

Review Committee of Experts

(Summers/Verge)

• It is to be feared that with [the Secretariat's] present limited resources it will not be able to provide adequately for the future development of objectives of the Agreement, especially as regards the need for a methodical and independent program of comparative research of an economic, legal and institutional nature.

• Greater uniformity between [the NAO procedural rules related to public communications] with due regard to differing legal traditions would be desirable, especially with respect to the public character of the review process.

• Additionally, National Advisory Committees may emphasize the connection with nongovernmental circles, and it will be necessary to periodically ensure that they are representative.

• As regards the existing scope of the ECEs, a practice of "proactive" Ministerial Consultations, that is, consultations not necessarily associated with the prior review of a public communication by an NAO, could have this result in appropriate cases, as is in any case permitted by the Agreement.

• Additionally, as the first three labor principles were at the heart of the NAO activities and Ministerial Consultations during the period covered, it would seem advisable to examine the reasons, which in any case are not very clear, for their exclusion from the scope of the ECEs.

• There is a need for the Secretariat to expand the channels of communications and to distribute as widely as possible the information generated by such [trinational cooperative] activities that are carried on mostly under the aegis of the NAOs. Further, the Secretariat should make use of this information as the basis for further discussion and for research projects.

• Remarkably, the Secretariat has not produced the most basic and elementary document, a three-language verbatim translation of the labor laws and derived regulations of the three countries. This should be its first priority.

• The Secretariat should expand its comparative research studies, focusing in the future on more narrow and specific problems, and it should widely disseminate the results of the research. These studies should not be random but based on long-term planning and should include not only legal research but also socioeconomic empirical research. One of the products should be a bank of comparable and impartial data that could be confidently relied on by each Party.

• 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.

• 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.

• 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.

• As members of the Committee we consider that the cooperative goals and functions of the NAALC should receive greater emphasis over and above the resolution of disputes.

• The National Advisory Committee proposes that events oriented towards research and the exchange of information be strengthened and publicized to an even greater extent.

• Cooperative activities, the exchange of experiences and seminars should not surpass the scope of the NAALC, so as to prevent their subsequent confusion with proceedings, individual cases or other interventions.

• The functions and limits of the National Administrative Offices (NAOs) should be clearly established. The National Advisory Committee is against the NAOs assuming the role of tribunals.

• The Committee does not believe that the Mexican NAO should participate in hearings staged by its United States counterpart, since even its observer status would necessarily jeopardize national sovereignty. Mexico should not permit the United States NAO or any other U.S. agency to assume the role of a jurisdictional or moral tribunal vis-à-vis events taking place in Mexico.

• The NAOs do not possess jurisdictional characteristics and should therefore be limited to facilitating contact, cooperation and mutual support between the signatory countries of the Agreement.

• The chief function of the NAOs and the Secretariat should be focused on strengthening consultation mechanisms and the exchange of information by means of technical assistance, joint research projects and the training projects provided for by the NAALC.

• The National Advisory Committee suggests that special care be taken to ensure that public communications do not exceed the limits of the NAALC. The National Advisory Committee is therefore opposed to any given Party attempting to impose standards and decisions upon its counterparts. As members of the Committee, we fully uphold the spirit of Article 42 of the NAALC, inasmuch as the authorities of one of the Parties shall not be empowered to undertake labor legislation enforcement activities in the territory of another Party.

• In all such cases, the National Administrative Offices should be more careful when analyzing and accepting potential public communications.

• We therefore consider that full use has not been made of the potential offered by the exchange of information and dialogue generated by public communications; these mechanisms were clearly conceived for cooperative rather than controversial purposes. It is important to take advantage of public communications to correct erroneous interpretations or those taken out of context due to a deficient knowledge of the respective legal systems.

• The National Advisory Committee stresses that the establishment of the Evaluation Committee of Experts (Article 23) embodies three basic limitations [trade-related, mutually recognized and persistent patterns] that should be closely observed.

• We consider that procedures governing the evaluation and resolution of disputes should be used only in exceptional circumstances.

• The National Advisory Committee considers that the Secretariat of the Commission of the North American Agreement on Labor Cooperation should continue with the same functions and structure.

• The National Advisory Committee opposes any change in the structure, purpose and function of the Secretariat. Its duties should continue to be to provide support for the Ministerial Council. At a time when states and international organizations have tended to reduce their respective headcount, it would not seem appropriate to propose a large number of resources and attributes for the Secretariat. This organization should be prevented from growing in terms of its specific weight and action and should not be allowed to become an instrument for exerting pressure and thereby departing from the original purpose for which it was created.

• The National Advisory Committee does not believe that the review process should involve the reform of the NAALC. Article 10:1 (a) states that within four years after the date of entry into force of the NAALC, the Council shall "review its operation and effectiveness in the light of experience." This Article does not specifically mention the renegotiation or reform of the NAALC, since Article 52 states that any amendment of its content requires the consent of the Parties. The review process currently under way is in no way related to any kind of amendment process.

The NAC makes the following recommendations:

• That the Commission work with the NAOs and the Secretariat to develop a more systematic approach to determining topic and content of cooperative activities and to ensuring that the balance of emphasis among topics in any given period accurately reflects the Commission's establishment of priorities.

• As part of transparency, public information and education about the NAALC and the Commission's activities thereunder, the NAC urges further development and use of Commission, Secretariat and NAO websites and the posting at each website as appropriate, for public downloading, of every document formally generated by the activities of each organ, including in particular:
  • all duly adopted rules and regulations governing proceedings pursuant to the NAALC;

  • all formal reports generated in proceedings before the NAOs, the Secretariat, and ECE, an Arbitral Panel, and experts appointed pursuant to provisions of the NAALC;

  • as volume and technology permit, public transcripts of hearings and seminars conducted pursuant to the NAALC;

  • as volume and technology permit, the text of all public submissions deemed to have sufficient substance by the NAO to support cooperative consultations.

• The Council should expand the exercise of its power to "promote the collection and publication of comparable data on enforcement, labor standards and labor market indicators" under Article 10(1)(h), in a manner which will:
  • promote the ability of the Parties and interested private actors to evaluate effective enforcement by each country of its own labor laws;

  • promote the ability of the Parties and interested private actors to compare enforcement effectiveness within a given Party across time;

  • promote the ability of the Parties and interested private actors to measure the extent to which each Party's modifications of their occupational safety and health, child labor, and minimum labor standards fairly can be characterized as "improving" over time;

  • otherwise enhance the ability of the Commission and public and private actors within the Parties to monitor fulfillment in each Party of the NAALC's stated objectives and Parties' obligations. While, in some instances, it may be appropriate to encourage one or more Parties, or state(s) or province(s) within one or more Parties, to expand record-keeping obligations of private actors, the NAC's primary focus here is on mutually comparable and compatible government record keeping as to the details of labor law enforcement, standard setting, legislative action, regulatory processes and other activities pertaining to fulfillment of each of the NAALC obligations.

• The NAOs should strive to assume a more proactive role in the application and enforcement of the Agreement and in its eventual elaboration, through expanded use of the NAO's power of initiative in cooperative consultations and evaluations, as to appropriate matters.

• The Commission, in its own processes for periodic review of implementation and potential further elaboration of the NAALC, should take account of such benchmarks for comparison as:
  • the effectiveness of the NAALC and implementation thereof in furthering its stated goals and objectives identified in the Preamble, Part One, and Annex 1 of the Agreement;

  • the effectiveness of the NAALC and implementation thereof in ensuring each Party's fulfillment of its obligations defined in Part Two;

  • the effectiveness of the Commission as a whole, the Council, the Secretariat and the NAOs in performing their roles and functions prescribed in Parts Three through Five of the Agreement and the effectiveness of the entirety of their operations in fostering fulfillment by the Parties of their Part Two obligations.

• In particular, the NAC believes it essential that due regard be paid not only to the specifics of matters such as conduct of cooperative activities and submission-related proceedings, but to broader matters, such as the extent to which present NAALC structure and instrumentalities are succeeding as suitable means to fulfill the stated policy objectives of the Agreement.

• The NAOs, the Secretariat, and the Commission must continue to be adequately funded to fulfill their roles and responsibilities pursuant to the NAALC, bearing in mind the likelihood that these functions will increase in depth and scope as experience in administering the Agreement accumulates.

• The NAC recommends that the NAALC be applied to permit ECE and arbitral panel consideration of matters arising under Part Two of the Agreement.