On February 1, 2016 the U.S. House of Representatives Committee on Ways & Means Ranking Committee Member Sander Levin released a Minority Staff Report titled: TPP Issue Analysis: Worker Rights (“Analysis”), together with solicited, submitted statements from various experts in the labor field.
- “May 10” Labor Provisions/ILO Precepts
The Analysis starts with a “history lesson” on the May 10th, 2007 Agreement whereby House Democrats secured the incorporation of labor provisions in U.S. “free trade” agreements (FTA) for the first time. The May 10 labor provisions require parties to commit, on reciprocal basis, to “adopt and maintain” five basic labor rights stated in the International Labor Organization’s (ILO) Declaration on Fundamental Principles and Rights at Work. These are: (1) freedom of association; (2) effective recognition of the right to collective bargaining; (3) elimination of all forms of forced or compulsory labor; (4) effective abolition of child labor, and; (5) elimination of discrimination in employment and occupation. Free trade agreements with Peru, Panama, Colombia and Korea contain the May 10 labor provisions. The Analysis emphasizes that, in the instances of Peru and Panama, House Democrats insisted that the parties bring their laws into compliance prior to Congressional vote and, in the instance of Colombia, its “systemic, persistent violence against trade unionists” required the Congress and Administration to work with the Colombian Government to identify additional steps required for consideration of the FTA.
- Potential TPP Partners Giving Rise to Labor Concerns: Vietnam, Malaysia, Brunei, Mexico & Peru
The Analysis then notes that, in addition to those ILO obligations required by the May 10 agreement, the TPP requires signatory nations: to establish a minimum wage; to discourage importation of goods made by forced labor, and; to prohibit weakening of labor protections in export processing zones. The thrust of the Analysis is then upon “the most prevalent labor conditions in the relevant countries “ of Vietnam,, Malaysia, Brunei, Mexico and Peru, leading to the general conclusion that “significant and legitimate concerns remain as to whether the labor standards of the May 10th Agreement will be fully implemented and enforced” under TPP.
As to Vietnam, the Analysis notes that this represents the first occasion the U.S. has negotiated a trade agreement with a communist country where the only representative that workers have is a union controlled by the Communist Party. Inasmuch as enormous and fundamental reform is indicated, the TPP contains a so-called “consistency plan” requiring Vietnam to undertake specific legal, institutional and procedural reforms. But whereas Congressional Democrats had insisted that the changes required to laws in Peru, Panama and Colombia required as a result of the May 10th Agreement happen before Congress voted, contrariwise, in the case of TPP, if implemented by Congress, Congress will have enabled the President/Administration authority to unilaterally make the determination as to compliance with commitments after the fact. Thus, commentator/professor Harley Shaiken has commented that the lesson from the NAFTA experience should have been that “effective labor reform must be the price-of-admission to a trade agreement, not an issue to be addressed after the fact. Strong, effective language on labor rights is of course important-in fact essential- but not as a substitute for demonstrated reform prior to the agreement becoming ratified.”
The Analysis notes that human trafficking has been a ”particularly concerning problem” in Malaysia, forced labor especially among foreign workers being a feature of several trade-related sectors including plantation agriculture, fishing, electronics and textile and apparel, apparently with the corruption and complicity of police and other state officials. The Analysis remarks on the discovery in May 2015 of dozens of human smuggling camps along the Thai border and numerous mass graves containing remains of trafficking victims. The Analysis further notes substantial Malaysian governmental discretion to cancel unions and restrict strikes. Again, the TPP contains a consistency plan to address Malaysia’s specifically enumerated challenges. And again concern is expressed as to Congress’s waiver of right to determine compliance with commitments before the fact and, as to both Vietnam and Malaysia, “whether a future administration will actually take the step of initiating a labor enforcement action against Malaysia under the TPP,” noting that in July 2015 the Administration “upgraded” Malaysia in the State Department’s annual Trafficking in Persons Report tier ranking to avoid withdrawal of TPA.
No consistency plans were negotiated with Mexico or Peru, notwithstanding, as reported in the submitted expert reports, that each has been subject to complaints under NAFTA and the U.S.-Peru Free Trade Agreement. Even where consistency reports have been negotiated, Human Rights Watch has raised question as to the extent they will be implemented or enforced, “given poor enforcement of labor rights provisions in other trade agreements and under each country’s domestic laws.”
- Ineffective Enforcement Measures
A major concern noted by several expert commentators is that TPP’s labor chapter can only be enforced by governments, not by unions, labor advocacy groups and trade federations (which can merely lobby or petition governments to seek enforcement), this sort of compliance structure contrasting starkly with “investors and corporations who can bring dispute settlement proceedings against member countries” pursuant to TPP’s controversial Investor-State Dispute Settlement (ISDS) system. (Commentator/Professor Harley Shaiken thus commented that under NAFTA which had similar investment protections, “the trade agreement made Mexico comparable to Ohio for investment guarantees and more like Honduras for labor rights in the export sector.) Thus, by example, pursuant to the Central American Free Trade Agreement (CAFTA), notwithstanding petitions by labor groups against Guatemala in 2008 for failure to uphold core standards in CAFTA’s labor chapter, the U.S. did not take any action until 2015. As Human Rights Watch remarks, “gauging compliance [with consistency plans] will require subjective assessments by the U.S. that may take years to carry out and face obstacles arising from foreign policy objectives, commercial interests and other political considerations.”
 Catherine Feingold, International Director of the AFL-CIO, has commented as to the Colombia Labor Action Plan: “given the lack of any independent evaluation; the commercial pressure to enter into force outweighed the political will to make sure that the plan was fulfilled.” Feingold further states in her submission to the Committee, “We have never yet seen the US impose trade sanctions in an FTA as a result of labor violations. We are not confident this practice will change.”
 Several had urged that, in view of the “extraordinary challenges” facing Vietnam, TPP establish a special mechanism at the outside of the Agreement’s entry into force to ensure ongoing compliance, but the consistency plan does not include such a mechanism
 Shaiken comments that, in actual fact, “in its present form, TPP locks in the status quo when it comes to labor rights…It sends the unmistakable signal that current labor rights are acceptable not only to Mexico but to all the TPP countries.”
 A consistency plan has also been developed for Brunei, which practices sharia law and whose security laws provide government with latitude to impinge on freedom of association and right to collective bargaining and which also has a substantial number of foreign workers vulnerable to abuses and exploitation.
 Several have commented that the lack of a consistency plan for Mexico “is a missed opportunity.” See statement of Sabin Dewan, Executive Director, JustJobs Network.