On 1 October 2018, the draft text of the United States-Mexico-Canada Agreement (Draft USMCA), the North American Free Trade Agreement (NAFTA)’s successor, was published on the official website of the United States Trade Representative. The Agreement has still some way to go though, including extensive legal ‘scrubbing’ by national authorities and, most importantly, approval by the corresponding national legislatures, which is likely to give rise to intense controversies. Much of the debate surrounding the Agreement so far has revolved around its labor implications, with US Trade Representative Robert Lighthizer stating that the renegotiations’ objective was, among others, “to better serve the interests of our workers”.
Against this backdrop, this post takes a look at the Draft USMCA’s labor rights dimension. It analyzes the Draft USMCA’s Labor Chapter and also reviews certain other chapters that are relevant from a labor rights perspective. The main argument is that, while the Draft USMCA entails some interesting legal innovations, the opportunity to address the main structural problems of US trade agreements to date in terms oflabor rights has largely been missed.
What is new in Draft USMCA’s Labor Chapter?
When the NAFTA was adopted in 1993, one of its novelties was the accompanying labor side agreement, which is still in force. At its core, it required parties to enforce their own domestic labor law, set up a Commission for Labor Cooperation, and established a complaint mechanism for third parties. It also allowed, in certain cases, for state-to-state arbitral dispute settlement with possibilities to impose limited fines as a last resort measure. The fate of NAFTA’s labor side agreement, which the Draft USMCA, as it stands, does not refer to, remains unclear.