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Mapping the social clause debate : the potential of the social clause to contribute to the development… Long, Andrea Elizabeth 2000

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MAPPING THE SOCIAL CLAUSE DEBATE: The Potential of the Social Clause to Contribute to the Development of an Alternative Form of Economic Integration  by  ANDREA ELIZABETH L O N G  BA., McGill University, 1997  A thesis submitted in partial fulfilment of the requirements for the Degree of MASTER OF ARTS m The Faculty of Graduate Studies Individual Interdisciplinary Studies Graduate Program Law/Political Science/Sociology/Economics  We accept this thesis as conforming to the required standard  The University of British Columbia October 2000 © Andrea Elizabeth Long, 2000  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department  or by his  or her representatives.  It is  understood  that  copying or  publication of this thesis for financial gain shall not be allowed without my written permission.  SeptrrtrrreTtrnof  WAloltWi \r^/-cW^W.xK\ S^cA^S Gro-o-Ooiz,Qo^occr\  The University of British Columbia Vancouver, Canada Date  DE-6 (2/88)  P ) Q ^ ) W - \Q,  a O O Q  ABSTRACT  In response to concern about the model of trade and investment liberalization reflected in existing and proposed trade and investment agreements (TIAs), efforts have been made to balance the economic orientation of trade with social considerations. One proposal that has garnered significant attention in this regard is the social clause (SC): a set of labour rights to be attached to the text of TIAs. Although the idea of including labour rights in TIAs seems laudable, significant opposition to the particular SC recommendations developed by Canadian and international labour organizations has emerged. Some critics charge that the addition of a clause to TIAs will not only prove unproductive, but will actually serve to legitimate problematic aspects of these agreements. Others insist that the content of the SC will exacerbate existing inequalities in the international trade order. In this thesis, I reconstruct debate over the SC to determine whether this instrument can effectively contribute to the realization of a more socially responsible trade and investment regime. Using proposals advanced by the Canadian Labour Congress as a key point of reference, I argue that there are resources available to clause proponents to respond to claims that the SC is an inadequate approach to the goal of resisting the current model of liberalization. As such, there is room to resist the conclusion that the SC should be rejected in its entirety. While it may be possible to preserve the SC approach, however, the same cannot be said about the content of current clause proposals. Criticisms of the narrow range of issues covered by existing SC recommendations clearly demonstrate that a rethinking of the content of the clause is not only warranted, but also necessary. Accordingly, I conclude by exploring three considerations that should be factored into the development of what would constitute a more adequate SC: first, existing patterns of inequality in the international trade system; second, the range of issues addressed by the clause; and third, the location of the clause within the context of the international trade regime.  n  TABLE OF CONTENTS  Abstract / ii Acronyms and Definitions / iv Introduction /1 Chapter One /11 Still Fighting: A Decade of the CLC's Response to Trade and Investment Liberalization in Canada Theme I. The C L C ' s Characterization o f Trade and Investment Agreements Theme II. The Impetus Behind Trade and Investment Agreements Theme III. T h e C L C ' s Understanding o f the Effects o f Trade and Investment Agreements Theme I V . C L C Strategizing A r o u n d Trade and Investment Agreements  Chapter Two / 43 Social Clauses and Labour Rights: Protecting the Interests of Working People Within Trade and Investment Agreements The Social Clause Proposals o f the C L C Querying the Social Clause: Strategic Shifts, Questionable Commitments  Chapter Three / 63 Working from Within: Legitimation, Transformation, or Subversion? W o r k i n g F r o m W i t h i n : Four Objections to the U t i l i t y o f the Social Clause Strategy A Place at the Table: Putting the Obligations o f the Collective B a r g a i n i n g Legacy into Practice Pragmatism as a Resource for Subversion Conclusion  Chapter Four/ 91 Moral High Ground, Competitive Low Ground, and Other Myths Assessing the Content o f Social Clause Proposals Conclusion: Rethinking the Social Clause?  Chapter Five /119 Resources for Redefinition: Alternative Visions of the Social Clause Strategy Redefining the Social Clause: Three Considerations Implementing the Redefined Social Clause: Is There Reason for O p t i m i s m ?  Appendix /134 References /137  iii  ACRONYMS AND DEFINITIONS  APEC:  Asia Pacific Economic Cooperation  CLC:  Canadian Labour Congress. The CLC is the largest federation of Canadian trade unions representing approximately 2.3 million workers.  CUFTA:  Canada-United States Free Trade Agreement  FTAA:  Free Trade Agreement of the Americas  GATS: GATT:  General Agreement on Trade in Services General Agreement on Tariffs and Trade  HSA:  Hemispheric Social Alliance. A cooperative effort on the part of social and activists organizations in the Americas to forge an alternative to the model of integration represented by the FTAA.  ICFTU:  International Confederation of Free Trade Unions. The ICFTU consists of 206 unions in 141 countries and territories with a total membership of 125 million workers.  ILO:  International Labour Organization. A United Nations agency that promotes internationally recognized human and labour rights by formulating minimum standards through a tripartite structure involving workers, employers, and governments.  MAI:  Multilateral Agreement on Investment  MERCOSUR: Mercado Comun del Cono Sur (Common Market of the Southern Cone). A free trade block and customs unions between Brazil, Argentina, Uruguay, and Paraguay. NAALC:  North American Agreement on Labour Cooperation  NAFTA:  North American Free Trade Agreement  Neoliberalism: An ideology premised on a particular set of beliefs about what constitutes desirable economic policy: namely that the deregulation of the market is the best means to achieve efficient allocations of goods and wealth; that economic growth will follow from increased efficiency; and that it is the maximization of growth, and not the reduction of poverty, unemployment, or inequality, that ought to be the primary goal of economic policy. OECD:  Organization for Economic Cooperation and Development. A forum in which member governments discuss, develop, and perfect economic and social policy. The OECD is currently composed of 29 member states. iv  ORIT:  Organization Regional Inter-Americano de Trabajadores (the Inter-American Regional Organization of Workers). An ICFTU regional affiliate in the Americas.  RQIC:  Reseau quebecois sur 1'integration Hemispheric Integration)  SC:  Social clause. A set provisions addressing core workers' rights to be inserted into the text of trade and investment agreements.  TIA:  Trade and investment agreement  TNC:  Trans-national corporation  TUAC:  Trade Union Advisory Council to the OECD. A union interface to the OECD with consultative status. TUAC is composed of 55 national organizations and represents approximately 70 million members.  UN:  United Nations  WTO:  World Trade Organization. An institution established on January 1, 1995 to govern international trade. The WTO agreements are a body of law that contains and administers legal agreements on international trade.  v  continentale  (Quebec Network on  INTRODUCTION  The last decade has witnessed a renewed proliferation in the number of regional, bilateral, and multilateral trade and investment agreements (TIAs). Some of these agreements have been proposed and/or ratified with little accompanying publicity, such as the 1996 CanadaChile agreement, the proposed agreement between Canada and Singapore, and the Agreement on Internal trade negotiated in 1994 to remove trade barriers among Canadian provinces. Other agreements have generated a significant amount of attention from local and national news and popular media, citizen and activist organizations, and business lobbies and think tanks. Most notably, this latter category includes the North American Free Trade Agreement (NAFTA), the Multilateral Agreement on Investment (MAI), and the World Trade Organization (WTO). For a wide range of communities, the notoriety of certain TIAs flowsfromthe fact that their negotiation and ratification has come to be interpreted as indicative of a problematic trend in the orientation of Canadian trade policy formation. Women's groups, environmentalists, development organizations, labour bodies, church groups, cultural communities, students, citizen's organizations, and many others take issue with the fact that TIAs have been, or are being, negotiated on the basis of a set of narrowly economic priorities. Trade machinery has been organized such that technical issues like the treatment of investors, barriers to trade, and the provision of subsidies, not only trump, but delegitimate, measures needed to sustain. general social and environmental well-being in Canada and around the world. In short, critics allege that there is insufficient regard for the impact of burgeoning trade relationships on the environment, culture, labour, sovereignty, human rights, sustainable development, and so on. The escalation of protests aimed at institutions of the world trading order - for example, the 1999 WTO Ministerial Conference in Seattle, and the 2000 meeting of the Asia-Pacific Economic  1  Cooperation in Darwin, Australia - heralds the increasing breadth and depth of opposition to the current trade regime. Concern about the narrow economic orientation of the current trading system has paved the way for calls for the development of a social framework for trade and investment liberalization. Among these calls, one proposal that has begun to garner significant attention is the social clause (SC).  Principally promoted by various national and international labour  organizations, the SC recommends the addition of provisions protecting labour rights to all existing and proposed TIAs. Although there is some variation among clause proposals, they generally proscribe the practice of lowering labour standards to attract investment, and exhort countries to respect a small set of what are referred to as core workers' rights. SC proposals have generated a considerable amount of debate, not only from pro-free traders interested in heading off the establishment of trade-labour links, but also from many commentators who support the development of an alternative form of integration. The analysis of the SC that I develop in this thesis is not intended to defend the need to forge a model of trade and investment integration that recognizes the social as well as the economic implications of trade. Numerous academic and activist commentators have already drawn attention to the importance of challenging the current liberalization agenda, and ultimately replacing it with an approach better able to permit sustainable development, responsible and accountable national and international governance, a fair distribution of wealth, adequate social security, and respect for equality and human rights (Alternatives for the Americas 1999; Brodie 1995; CLC 1996a, 19997a; Cameron 1988; Cameron and Watkins 1993; Clarke and Barlow 1998; Cohen 1996; 1997a; Common Frontiers 1996; Gabriel and MacDonald 1996; Grinspun and Cameron 1993; Jackson and Sanger 1998; Shields and McBride 1997; Srinivasan 1996).  1  My purpose is to  instead contribute to debate over how best to achieve a more socially responsible trade and 2  investment regime.  The question motivating this investigation is whether the SC is an  instrument capable of contributing to the realization of an alternative trade platform. Accordingly, I engage in SC commentary taking place among those already generally committed to the goal of developing a more balanced model of integration. My use of the expression 'clause opponents' does not therefore include commentators who resist efforts to forge a social dimension for trade. The SC has emerged as a key focal point in debate about what strategy to pursue to promote an alternative model of trade and investment liberalization. Clause proponents consider the (re)emergence of the SC as a sign of the success of efforts to legitimize the notion that trade 2  has a social as well as an economic dimension. However, many others are skeptical of the prospect of adding workers' rights to TIAs.  Some SC critics argue that it is unlikely that  enforceable labour provisions will ever be agreed to by TIA signatories. Others maintain that even the successful implementation of these provisions will be insufficient to achieve the goal of a more balanced form of integration, or that the addition of a SC to TIAs will actually yield negative results for some people and some countries. Despite persistent debate over the utility and desirability of the SC, to date there has been little progress with respect to evaluating the adequacy of the clause as a tool with which to push for the development of an alternative model of trade and investment liberalization. The arguments of commentators on both sides of the debate often fail to engage genuinely with opposing views.  In particular, there is a tendency for clause literature to be grounded on  uncharitable interpretations of arguments advanced by those on the other side of the debate. This trend not only gives rise to confusion about the respective positions of clause proponents and opponents, but it also tends to result in the discarding or distorting of what are in many cases legitimate concerns. 3  The starting point for my thesis is this lack of meaningful engagement between those for and against the SC. In an effort to put the arguments of these commentators into dialogue, I reconstruct the clause debate, offering my own analysis of arguments advanced by both sides. Central to my analysis are four main lines of SC criticism, and the resources available to clause supporters to respond. The first two concerns speak to the adequacy of the SC methodology; that is, whether the clause is an appropriate approach to the goal of introducing social considerations to TIAs. In this vein, some critics suggest that the SC will fail to achieve the positive outcomes predicted by advocates because it is grounded on a flawed understanding of the nature and operation of the international trade order. Others argue that the negotiation and adoption of a SC will actually serve to further legitimate the very trade regime that clause proponents are striving to challenge. The third and fourth lines of critique point to the problematic content of current SC proposals. On one hand, many critics insist that the SC as currently defined will yield significant negative implications for developing countries. On the other hand, critics take issue with the fact that the SC is defined solely in terms of workers' rights, and thereby elevates labour issues above the wide array of other social issues on which TIAs impact. The positions of SC proponents include a variety of resources with which to defend clause proposals against the four lines of critique outlined above, and accordingly, to assert the importance of the SC as a tool with which to challenge the dominant model of trade and investment liberalization. By putting these resources in dialogue with the arguments of SC opponents, I conclude that while thefirsttwo lines of criticisms clearly illuminate key limitations of the clause strategy, they do not provide sufficient reason to reject the use of the SC approach altogether. Conversely, I argue that the third and fourth lines of criticism do offer sufficient reason to redefine the content of current SC proposals. 4  This process of redefinition should  proceed with reference to certain guiding considerations, three of which I discuss in the final Chapter. Overview of Thesis I develop my analysis of the SC debate in five Chapters. The first two Chapters focus on the activities of the Canadian Labour Congress (CLC), an umbrella labour organization representing over seventy federations and many more individual unions. Chapter one tracks the evolution of CLC analyses of trade and investment liberalization over approximately the last decade. This brief overview is an important prelude to my analysis of the SC debate because it outlines the context within which SC proposals have emerged, including the concerns and strategies that preceded and guided the development of the clause approach. The second Chapter further expands and focuses my analysis of the work of the CLC by offering a sympathetic critique of the organization's commentary on the SC. It is important to chart the specific clause recommendations developed by the Congress in order to add substance to the concept of the SC. A concrete formulation of the content and the structure of actual clause proposals helps to ensure that analyses are focused around an accurate interpretation of what this expression means; and that recommendations regarding the reformulation of the SC are relevant to actual proposals. In addition, consideration of the SC arguments advanced by the CLC helps to clarify the role that the clause is expected to fulfil in organizational strategizing, an issue that has given rise to confusion in clause debate. The clause proposals developed by the CLC provide a useful SC example to analyze for three reasons.  First, the CLC has been a significant presence in activism around trade and  investment liberalization both nationally and internationally, and has been centrally involved in the development of various resistance campaigns.  As such, there is a wealth of available  information on which to base an analysis of the organization's understanding of both the impact 5  of TIAs, and appropriate strategies for addressing the deleterious consequences of the current liberalization regime. Second, the CLC is the largest labour body in Canada, representing over two million working people. While it is certainly not the case that every CLC member agrees with the organization's policy prescriptions, positions developed by the Congress nevertheless enjoy a very broad base of support. Finally, the SC proposals drafted by the CLC in cooperation with its international partners exemplify the kinds of considerations that inform arguments in favour of establishing a trade-labour link even when these considerations are not expressly referred to as elements of a SC. As such, the Congress' recommendations provide a useful reference point for discussion of the status of debate over the addition of labour provisions to TIAs. After examining the CLC and the SC proposals advanced by this organization in Chapters one and two, Chapter three begins my reconstruction of the SC debate that has unfolded in recent years. In this Chapter, I consider thefirsttwo of the four lines of critique noted above: namely, that the SC will prove incapable of realizing the positive outcomes anticipated by proponents; and that the clause will actually reinforce the existing trade and investment system. Key to my analysis of these arguments is the fact that they are both grounded on the assumption that efforts to oppose the dominant liberalization regime will ultimately prove inadequate if they must proceed by working within the structures of this regime. In response to the claim that working from within the trade system is ineffective, CLC representatives insist that the collective bargaining tradition of the labour movement imposes an obligation on labour organizations to negotiate with those in power in order to seek gains for the working people they represent. However, the Congress also insists that participation in such negotiations should be accompanied by explicit acknowledgement of the inadequacy of the current model of liberalization, and the need to replace this model with a more balanced 6  approach. The CLC recognizes that it is important to sanction efforts to work within existing trade institutions while simultaneously affirming the need to challenge the legitimacy of these institutions because of the constraints imposed by the current economic and political climate. In this context, pragmatism demands a broadening of what counts as success to include the kinds of limited gains forecast with respect to the labour side agreement of the Canada-US-Mexico trade deal. Chapter three concludes with the recognition that while the SC is not an ideal instrument with which to challenge the narrow economic orientation of TIAs, its potential to yield some positive outcomes is sufficient to argue against the rejection of the clause methodology in its entirety. Chapter four continues my reconstruction of the SC debate by considering the two criticisms of the content of current SC proposals noted above. On one hand, clause opponents maintain that the addition of labour rights provisions to TIAs will have harmful repercussions for developing countries.  Trade-linked workers' rights will essentially eliminate developing  countriesfromtrade because resulting increases in production costs will disproportionately affect Southern countries that have a limited capacity to respond to complaints. On the other hand, critics insist that the narrow labour orientation of the SC is too limited to bring about significant change in the existing model of integration. Commentators point out that defining the SC only in terms of labour rights disregards the wide range of other issues that are implicated in the liberalization of trade and investment. At the same time, this narrow content identifies the SC as a self-interested strategy being advanced by labour organizations that have overlooked the fact . that a broad-based approach is needed to secure lasting changes in the international trade order. In light of the concerns outlined in Chapter four, I conclude that a rethinking of the content of SC proposals is not only warranted, but also necessary. The final Chapter of this thesis is accordingly devoted to an exploration of the kinds of considerations that should guide 7  this process of redefinition.  I do not pretend to offer an exhaustive account of the factors  involved in reshaping the SC - this is a project that clearly requires more research and discussion than is permitted by the scope of this thesis. However, I do highlight three considerations that should be factored into the development of what I think could be a more adequate SC: first, existing patterns of inequality in the international trade system; second, the range of issues addressed by the clause; and third, the location of the clause within the context of the international trade regime. Methodological Considerations The research for this thesis was importantly informed by interviews with persons centrally involved in various aspects of the debate over the development of a social dimension for trade and investment liberalization in Canada.  Decisions concerning the subjects for  interviews were guided in part by the members of my thesis committee, in particular Marjorie Griffin Cohen, and in part by my own canvassing of individuals and organizations involved in commentary on the social dimension of trade. Given my focus on the CLC, I considered it important to contact individuals both within and outside of the labour movement. At the same time, I arranged the interviews such that I would speak with individuals in favour of the SC, as well as persons skeptical of clause proposals, from each of these locations. In this way, I sought to ensure that my analysis was informed by competing insights on the utility and desirability of the SC as an instrument with which to push for the development of an alternative understanding of trade. My goals for the interview process were twofold. First, to expand upon the information available in published policy documents obtained from the archives of the CLC and other organizations involved in the development of SC positions. In addition to academic explorations of issues around the SC, the analyses developed by activist and citizens' groups proved  8  invaluable as a source of recent information about the status of SC proposals in ongoing trade negotiations.  The second goal for the interviews was to permit the exploration of individual  experiences with and feelings about the SC, and the ways in which this strategy has been used by national and international labour organizations. In the end, this layer of personal commentary added a significant - and sometimes unexpected - dimension to many aspects of my investigation. Interviews were requested by mail, with preliminary correspondence sent to twelve individuals. From this initial mail out, ten positive responses and one negative response were received. I did not receive a response from the final person. Semi-structured interviews were conducted with the ten individuals who responded positively between March and June of 1999 in Vancouver, Toronto, and Ottawa. I constructed a template for each meeting that covered such general topics as the individual's understanding of what a SC is, potential outcomes associated with the pursuit of this strategy, and the location of the SC in broader organizational, national, and international strategizing. However, conversations evolved to incorporate and investigate new issues, or new angles on issues, as they arose. I maintained this rather open-ended structure through all of the interviews in order to permit people to draw their own connections between issues being discussed, and to highlight the aspects of these issues that they felt were most important or relevant. As a result, it was instructive to consider not only what was discussed in some detail, but also what was left out or briefly dismissed. The interviews ranged in length from thirty minutes to 1.5 hours, although the average length was approximately one hour. Each interview was recorded and subsequently transcribed, and all excerpts quoted in the text of the thesis have been edited as little as possible. confidentiality.  9  All interview participants were guaranteed  ENDNOTES  Recognition o f the need to address the social as w e l l as the economic implications o f trade is arguably g r o w i n g within the political sphere as w e l l . The French government's decision to withdraw from negotiations on the Multilateral Agreement on Investment in 1998 signalled this country's significant concern regarding the scope o f the proposed agreement (Globe and Mail, Oct. 15/98, B l ) . Since that time, other political figures have publicly suggested the need for greater balance in the international economic system. Speaking to the International Monetary F u n d ' s Development Committee, Finance Minister Paul M a r t i n noted that "we cannot ignore the real consequences for people in any crisis assistance or response package. The social implications have to be recognized up front and on par with the economic response" (Globe and Mail, Oct. 6/98, A 7 ) . Similarly, several members o f the G r o u p o f Seven (including Canada and Germany) have called for greater regulation o f the flow o f capital, although the U S remains skeptical o f such proposals (Globe and Mail, Feb. 2/99, A 1 0 ) . 1  1 use the term reemergence here to acknowledge that debate over the adoption o f trade-indexed labour provisions is not a recent development. For a brief overview o f the history o f trade-labour links, see: N i g e l Haworth and Stephen Hughes, "Trade and International Labour Standards: Issues and Debates Over a Social Clause," The Journal of Industrial Relations v o l . 39, no. 2 (1997), 179-195; or J. M . Servais, " T h e social clause i n trade agreements: W i s h f u l t h i n k i n g or an instrument o f social progress?" International Labour Review vol. 128, no. 4 (1989), 423-431.  2  10  CHAPTER O N E  Still Fighting: A Decade of the C L C ' s Response to Trade and Investment Liberalization in Canada The CLC has been a key player in free trade and investment resistance campaigns in Canada since negotiations for the Canada-United States Free Trade Agreement (CUFTA) began in the late 1980s. Over the last decade, the Congress has produced a significant amount of research outlining the deleterious implications of the liberalization agenda, and suggesting channels through which this agenda can be both challenged and reinvented. By documenting a wide range of reasons to be concerned about agreements like the CUFTA and its successor, the NAFTA, this literature has helped to educate the general public about trade-led integration, generate widespread suspicion of the sanguine claims of many businesses and governments regarding the operation of TIAs, and place the CLC at the forefront of Canadian organizations dedicated to resisting the current form of trade and investment liberalization. To contextually situate the emergence and negotiation of the SC as a strategy with which to challenge trade-led integration, I begin this thesis by canvassing CLC literature on liberalizationfromapproximately the last decade. In this discussion, I elucidate the development of the Congress' position with reference to four main themes.  The first theme is the CLC's  characterization of TIAs. Primarily referencing the purpose and scope of these agreements, the Congress points to the way in which TIAs entrench corporate power while at the same time constraining governmental power, outcomes demonstrating that TIAs are about much more than just trade. With respect to the second theme - the impetus behind the adoption of TIAs - the CLC identifies corporate/business interests, the United States (US) government, and pro-free trade national governments as key forces supporting the entrenchment of an agenda of trade-led integration. The repercussions of TIAs are the third theme discussed in Chapter one. I outline six key areas of concern for the CLC, and describe how the organization's descriptive analyses 11  have shifted away from a nationalistic focus and towards a stance that highlights the common interests of working people around the world. The final theme is the strategies employed by the CLC to resist the negotiation and ratification of TIAs, or to mitigate the impact of these agreements once they are in place.  I outline the organization's initial commitment to the  abrogation of TIAs between Canada, the US, and Mexico, as well as the Congress' subsequent decision to call for changes to existing trade commitments to make them more socially palatable. THEME I. THE CLC'S CHARACTERIZATION AGREEMENTS  OF TRADE AND INVESTMENT  The CLC's literature on trade and investment liberalizationfromthe last decade is quite diverse, not in the least due to the fact that it has been produced by a number of different people for a variety of purposes and audiences. As a result, there is no single characterization of the purpose or scope of TIAs - either individually or as a group - common to each text. However, some obvious themes do emerge across various analyses. One way in which the CLC characterizes TIAs is on the basis of their purpose. Two related interpretations of what this purpose is reappear most regularly: first, that TIAs are intended to entrench the terms of corporate economic integration; and second, that they are designed to limit the power of governments (CLC 1992c, 1; 1993c, 1; 1996a, 1; 1997c, 1; 1997d, 4; 1997e, 1-2). With respect to cementing corporate power, TIAs are variously described by the 1  CLC as vehicles to facilitate corporate mobility (1992a, 1; 1997d, 2); attempts to establish a 'constitution' or 'charter of rights' for corporations (1990d, 2; 1990e, 14; 1992c, 1; 1993c, 1; 1997e, 1); and declarations of unfettered corporate rights (1997b, 6-7; 1998a, 1-2). In essence, TIAs are a medium through which to translate the priorities of a 'business-friendly' economic and political agenda into Canadian law. This legalframeworkcan then be manipulated "to direct any benefit from future expanded markets to corporate profits rather than to workers" (1992c, 1)  12  by directly challenging governmental policies and decisions, particularly those perceived to interfere with conditions needed to maximize corporate interests (1997e, 2; 1998a, 1). For the CLC, then, the notion of using TIAs to expand corporate rights entails in part that these rights supersede other sources of authority, in particular, representative governments. Hence the second purpose ascribed to these agreements: namely, the undermining of the power of democratically elected governments. As the CLC explicitly acknowledges in a 1992 text, "[t]he ultimate objective of the [CUjFTA and NAFTA... is a blatant transfer of power from the state to corporate boardrooms" (1992c, 1).  By constraining governmental authority, TIAs  circumscribe states' ability to build healthy, productive economies and to act in the public interest. At the same time, the CLC recognizes that the erosion of traditional notions of national sovereignty contributes to the entrenchment of corporate power by "very significantly limit[ing] the ability of democratic governments to shape and influence the decisions of large transnational corporations" (1997e, 2). In addition to augmenting corporate influence over government activities, the CLC argues that the formal terms of TIAs constrain governments by contributing to a redefinition of the scope of legitimate state action to include only market advancing activities: While the fiscal tightening has been rooted in monetary policy, it is not unrelated to economic integration in that the drive for international competitiveness has take priority over stimulation of internal demand... As in other countries, much of government's role has been reconstructed to be the enhancement of business competitiveness via domestic policies of austerity, a trend which has been speeded by the fact that more and more domestic demand is now met through imports so fiscal stimulus is less effective (1997b, 17). 2  On this view, TIAs (among other factors) actually prevent governments from using tools with which the market may be shaped to serve the needs of citizens (1992c, 1; 1993c, 1; 1997d, 1), and with which adjustment to the exigencies of liberalization may be facilitated (1990d, 1; 1990e, 14; 1993d, 8; 1997a, 7; 1997b, 7).  3  The role of governments is instead confined to the  facilitation of market expansion through the implementation of regulatory and legislative 13  initiatives needed to sustain it (for example, TIAs). For the CLC, this goal of expanding the scope of unfettered market activity at the expense of active governance and democratic accountability is key to the liberalization agenda. A second way in which TIAs tend to be characterized by the CLC is in terms of their scope. Central to this perspective is the claim that TIAs are about much more than just trade, or in other words, that they are not fundamentally 'trade' agreements at all. For example, the CLC argues that "the [CU]FTA/NAFTA is much more than a 'free trade' agreement and goes well beyond tariff elimination to limit government actions which can be seen as affecting the evolution of markets" (1997b, 6). While this description clearly references the above concerns regarding corporate power and national sovereignty, it also includes the "formal annexation of Mexico as a low-wage production zone" (1993d, 27; see also 1991b, 40), the "break[ing] down [of] so called barriers to foreign investment in developing countries" (1998a, 7; see also 1991b, 40; 1993d, 27; 1997e, 2), and a wide range of other direct and indirect impacts on labour and environmental standards, economic development,  investment,  culture, social programs,  agriculture, employment, and so on. Given the breadth of this liberalization agenda, the CLC 4  maintains that the most recent round of TIAs should be understood as being much more ambitious - and accordingly more harmful - than past agreements addressing primarily tariff elimination (1996a, 1; 1997e, 1). THEME II. THE IMPETUS BEHIND TRADE AND INVESTMENT  AGREEMENTS  Given that the CLC understands trade and investment liberalization as promoting corporate rights at the expense of national sovereignty, it is not surprising that the organization considers corporate and business interests to be one impetus behind TIAs. The claim that the corporate/business community in the US, Canada, and elsewhere has been instrumental in securing the acceptance and entrenchment of trade and investment liberalization appears 14  consistently throughout CLC literature (1988; 1990b; 1990d; 1990e; 1990f; 1991b; 1991c; 1992c; 1997a; 1997e; 1998a; 1999d). In this context, corporations are presented as primarily profit-oriented organizations preoccupied with satisfying their own short-term interests with little concern for the immediate or long-term well being of workers, citizens, the environment, or economies. For example, the CLC states in an early text that "[fjree trade was nothing more 5  than a corporate blueprint aimed at profits with no concern for people" (1988, 11). An analysis from 1996 similarly argues that the NAFTA "would work to the benefit of transnational corporations - at least in the short term sense of enhancing their ability to restructure production in line with 'market forces' - but would not benefit workers in either the US, Canada or Mexico" (1996a, 5). The narrow economic orientation of the corporate priorities outlined in these quotes captures the essence of what the CLC labels as the 'corporate agenda'. Organizational literature from the last decade describes the goals of this agenda as including: achieving maximum freedomfrompublic accountability, replacing state managed trade with corporate managed trade, locking in the market orientation of the economy, transferring power from the state to corporate bodies, eliminating barriers to foreign investment, and obtaining access to cheap labour (1990d; 1990e, 6; 1990£ 59:5; 1991b, 39-41; 1991c; 1992b, 40; 1992c, 1; 1993d, 26; 1997e, 1-2; 1998a, 7).  6  In addition to the corporate interests driving trade-led integration, the CLC argues that the United States is a key force behind the implementation of TIAs, particularly in the pre-NAFTA 7  era (1987a; 1990f; 1991b, 40; 1992a, 3; 1993d, 27).  As the organization writes in 1991,  "[wjhether we are talking about continental free trade (with Mexico) or a hemispheric agreement, the United States, as the dominant power by far, will dictate its terms and be able to control it" (1991b, 40). CLC analyses from the CUFTA/NAFTA era insist that American trade interests are inconsistent with the needs and priorities of its smaller, less powerful NAFTA 15  partners. Hence concerns in CLC literature about the colonization or annexation of Canada and Mexico (1987b; 1987c; 1992a, 3; 1993d, 27); US dominance in bilateral and continental negotiations (1990d, 3; 1990e, 3; 1991b, 40); Canada's failure to win key concessionsfromthe US in trade negotiations (1990e, 2; 1992a, 2; 1992e, 9; 1993c, 7; 1993d, 21-2; 1997a, 14; 1997b, 7); and the demands imposed by the US negotiating timetable (1990f; 1992e, 2; 1993d, 22). In later texts, the dynamic of the US versus Canada/Mexico is replaced by more explicit recognition of the divergent interests of 'the developed world' and 'the developing world' (1997e, 1-2; 1999d). This recognition is accompanied by a slight shift in the tenor of the CLC's causal explanation, with the organization moving towards the view that the industrialized world (epitomized and dominated by the US) is driving the trade, and particularly the investment, liberalization agenda. This position is clearly reflected in the CLC's description of the impetus behind the negotiation of a Multilateral Agreement on Investment (MAI): The fact that the MAI talks are taking place at the [Organization for Economic Cooperation and Development] reflects the fact that most developing countries were not prepared to participate in the negotiation of a major [World Trade Organization] round on investment issues. Most developing countries still maintain major restrictions and regulations on foreign investment, and are in no hurry to deregulate. The advocates of the MAI in the industrialized countries - led by the US government - and transnational corporations hope that a successful agreement among a smaller group of countries will eventually lead to wider participation (1997e, 1-2). 8  A final impetus behind the negotiation and ratification of TIAs identified by the CLC is those national governments that are supportive of, or at least sympathetic to, the liberalization agenda. The CLC describes how governments have acted to implement afreetrade agenda, both directly by ratifying agreements, and indirectly by undertaking domestic policy reforms that are complementary to the political, economic, and social priorities underlying TIAs.  9  With respect  to direct action, the CLC argues that the Canadian government deliberately pursued trade liberalization as a means of permanently entrenching the market-orientation of the economy, signaling (at least a partial) convergence of corporate and governmental priorities (1990e, 12; 1990f, 59:5; 1991a, 3; 1997e, 1). The fact that the decision to pursue trade-led integration was 16  made irrespective of the absence of democratic debate on or support for this policy platform is further indicative of the government's commitment to this model of development (1990L 59:4; 1991b, 39-40; 1996a, 7; 1997d, 1).  With respect to policy reform, the CLC describes the  CUFTA as "very much part of a wider federal government agenda of deregulation and privatization and 'structural reform' consciously intended to give wider sway to market forces" (1997b, 6). This agenda includes the rolling back of labour and employment standard legislation (1993d, 8; 1997b, 28; 1999d, 10); the adoption of supportive monetary and fiscal policy (1990d; 1990e, 14; 1991a, 1-2; 1997b, 17), and public and social service spending cuts (1993c, 3-4; 1993d, 19-20; 1997a, 7; 1999d, 4).  THEME III. THE CLC'S UNDERSTANDING OF THE EFFECTS OF TRADE AND INVESTMENT AGREEMENTS An important research agenda for the CLC over the last decade has been to predict and/or document the implications of TIAs for Canadian citizens.  Given the broad content of these  agreements, this project requires that the organization consider a wide range of topics. Apart from obvious areas of concern for a labour organization - job loss and job creation, wage levels, employment standards, union bargaining strength, and so on - CLC analyses of the implications of liberalization have addressed issues including:  national sovereignty; social and public  services; corporate (irresponsibility; investment flows; trade balances; policy independence; the operation of US trade law; prospects and preconditions for long-term economic growth; income and earnings equality; poverty; and standards of living among Canadians. Since it is beyond the scope of this investigation to address each of these matters individually, I briefly describe the organization's arguments concerning six issues regularly discussed in some detail in organizational literaturefromthe last decade. These topics are: labour law and policy; national sovereignty; corporate power; the centrality of the US; social programs; and investment.  10  17  Employment and labour policy The effects of TIAs on jobs, workers, and the laws that protect them form the foundation of many CLC analyses of trade and investment liberalization, particularly in the late 1980s and early 1990s. This focus has inclined the CLC to draw attention to a wide variety of employmentrelated issues. To begin with, the organization repeatedly argues that the current model of integration has resulted in a loss of Canadian jobs, especially in the manufacturing sector. Indeed, the CLC contends that job loss is "the most visible outcome" of the liberalization process (1991a, 3). Several explanations of this decline in employment levels are offered: an increase in the number of mergers and takeovers at the expense of investment in new industries (1987a; 1991a, 6; 1991c); increased competition with and/or relocation to the US and Mexico, and the resulting downward pressure on higher Canadian wages and standards (1990b; 1990d, 2; 19903, 9, 14; 1990f; 1991a, 3; 1991b, 41; 1992a, 3; 1992d, 5; 1993a, 1; 1993b, 2; 1993c, 3; 1993d, 3; 1997b, 2-5, 25-6; 1999c, 8-9); the repatriation of'branch plants' to the US (1991a, 6; 1997b, 7); the inability of Canadian businesses to compete with an influx of US (and later Mexican) imports (1993d, 5; 1993c, 4; 1997b, 20); tariff reduction in hitherto protected sectors like clothing (1999c, 7); and the spin-off effects caused by plant closures and relocations in various manufacturing industries (1992a, 3; 1993d, 5; 1996a, 10-12). In later analyses, the CLC also points to factors indexed to the interplay between the general policy environment of the 1980s and 1990s and the decision to pursue formalized TIAs. These include: the abandonment of fullemployment as an explicit policy objective (1997a, 10); conservative macro-economic policies (and monetary policy in particular) that make it "more difficult to pursue expansionary policies in a context of globalized financial and product markets (1997b, 1, 16-8; 1999c, 7); and the priority of fiscal restraint that has characterized federal and provincial government platforms throughout the last decade (1997b, 17-8). 18  According to the CLC, the jobs lost in manufacturing and other sectors have not been replaced through sufficient growth in high technology, knowledge intensive industries, the areas in which employment was expected to expand (1993d, 15; 1996a, 20; 1999c, 4).  In early  analyses, the CLC suggested that this was because the job losses that followed liberalization were not cyclical, but structural: "they will not come back when the country emerges from recession" (1991a, 4).  Later texts acknowledge that while the manufacturing sector has  recovered some jobs due to the low dollar and export growth, these forces have not restored employment to pre-CUFTA/NAFTA levels (1999c, 7).  In addition to the lack of net job  creation, the CLC is concerned that kinds of jobs being created tend to be low-paying, part-time, temporary, with few (if any) associated benefits (1990a; 1990b; 1990e, 9; 1996a, 30; 1997b, 123; 1999d, 7). The organization recognizes that this trend towards poor quality employment has particularly deleterious effects for women and other disadvantaged groups (1997b, 13). A further area of concern for the CLC in the area of employment and labour policy is the increased pressure that integration has placed on Canadianfirmswith respect to creating a 'level playing field' for competition among businesses in North America and the hemisphere. The CLC fears the erosion of higher Canadian wages, standards, and working conditions as a result of the related factors of corporate mobility and increased direct exposure to competition from 11  low wage, low standard jurisdictions in the Southern US and Mexico (1990b; 1990d, 2; 1990e, 79 and 9-14; 1990f; 1991a, 3; 1991b, 41; 1992a, 2; 1992c, 1; 1992d, 8; 1992e, 13; 1993a, 1; 1993b, 2; 1993d, 30-1; 1997b, 25-28; 1999b; 1999c, 2).  The Congress argues that TIAs  "effectively create a single economic space in which corporations are given protection against 'discriminatory' public policies, and are free to shift production, investment, profits and jobs largely as they see fit, subject only to the logic of business profitability" (1996a, 2). Within this economic space, "the threshold of 'competitiveness' in terms of wages and labour and social 19  standards will be lowered to that of Mexico" (1992e, 13), thereby yielding "a loss of jobs and investment to the lower standard jurisdiction" or "pressures to lower Canadian standards" (1993a, 1). While these arguments suggest that the decline of wages and standards is a result of the 'new competitive reality' created by increased integration, the conscious efforts of pro-free traders to establish such a labour-unfriendly platform are also recognized. As noted above, both businesses and governments are able to use TIAs as direct levers for harmonization through explicit challenges or changes to policies, legislation, and regulations (1999d, 10). A final area of concern for the CLC with respect to employment and labour policy is the North American Agreement on Labour Cooperation (NAALC), generally referred to as the labour side-agreement to the NAFTA.  While the CLC is in favour of securing greater  recognition of the links between trade and labour issues, the organization does not consider the NAALC to be an adequate tool to advance this end (1993a, 1-2; 1993c, 5-6; 1996a, 62). As will be discussed in more detail in the final section on CLC strategizing, both the content and the structure of the side agreement are criticized on the grounds that they constrain its ability to realize significant changes in the treatment of labour rights within the current trade regime. National sovereignty The CLC believes that TIAs constructed along the lines of the CUFTA and the NAFTA are a threat to Canada's national sovereignty and the sovereignty of developing countries. Some early texts express this concern in terms of an actual surrender of Canadian sovereignty to the US (1987b; 1987c; 1990f, 59:4), but these arguments are more oftenframedin one of two ways. To begin with, the CLC highlights the constraints placed on governmental decisions by both the actual terms of TIAs and the increased competitive pressures that these agreements create (1992c, 1; 1992e, 13; 1993c, 7; 1993d, 8 and 24; 1997a, 7; 1997b, 7; 1997d, 2-3; 1997e, 2-3; 1999a, 1; 1999b, 2, 10-11). For example, the CLC argues that the text of the MAI: 20  ...establishes unnecessary and inappropriate barriers to achieving key social and economic objectives by ruling out various actions on the part of governments. In an astonishing and still undefined range of policy areas, the MAI would strike down policy levers which have been and remain of great importance to Canadians (1997d, 2).  Similarly, the organization notes that TIAs like the NAFTA are dangerous "because of the particular kind of economic relationship [they] would bring about between the US, Canada and Mexico" (1992a, 3): namely, one that locks in a harmful model of liberalization regardless of the platforms of democratically elected governments (1991b, 40; 1992a, 3; 1992c, 1; 1992d, 6-7; 1992e, 12-3; 1993c, 2-3; 1993d, 11-7, 21-2; 1997a, 14; 1997b, 7). The second sovereignty argument advanced by the CLC is related to the above discussion insofar as the organization contends that part of what these formal and contextual constraints entail is a surrender of government power to the market (1992a, 4; 1992c, 1; 1992e, 1; 1993d, 24). "The [CU]FTA/NAFTA  model is wrong because it sacrifices the sovereignty of  governments to so called market freedoms, which in reality amount to the freedom of transnational corporations to operate just as they please" (1992a, 4). The fact that TIAs expand the rights of "corporations and foreign investors to challenge government decisions" (1997e, 2-3) means that they permit companies to "close their operations in Canada without any risk of losing 'free access' to the Canadian market, and without any fear of 'discrimination' by Canadian governments" (1992a, 2).  By guaranteeing these outcomes, TIAs secure the ascendancy of  considerations of competitiveness within the global market over the capacity of sovereign governments to legislate in the public interest. Recent CLC analyses exhibit particular concern about the sovereignty impacts of the proposed MAI. The MAI would have both further entrenched, and extended beyond, NAFTA provisions limiting governmental ability to shape investment through review processes or performance requirements, and to regulate in areas like labour standards, the environment, culture, employment, and public services (1997e, 2-3; 1998a, 3-5). For developing countries, the 21  sovereignty implications of such an agreement would have been particularly onerous. On one hand, these countries were excluded from MAI negotiations taking place among more advanced countries.  12  Yet "if a MAI [had been] concluded, it [would have been] increasingly difficult for  developing countries which want to attract foreign investment to remain outside" (1997e, 2). On the other hand, many developing countries were (and remain) opposed to the negotiation of an investment agreement on the grounds that it will interfere with their ability to tie investment to national development (1997d, 2; 1997e, 2; 1999b, 4-5). Regulation of investment was key to the success of Northern and Asian countries, and "is needed to build up the capacity of developing countries to benefit from trade liberalization" (1999b, 5). Enhanced corporate power As noted in the above sections on the characterization of and impetus behind TIAs, recognition of the degree to which TIAs have contributed to the entrenchment and expansion of corporate power is the flip side of the CLC's concerns regarding national sovereignty. The CLC maintains that the provisions of TIAs greatly enhance the ability of corporations to act 'as they please'. Initially, the Congress expressed this concern in terms of the ability of corporations to influence governmental decisions, and their pursuit of 'lowest common denominator' labour and environmental standards (1990e, 12; 1991b, 41; 1992a, 4; 1996a, 2, 5 and 7; 1997a, 6; 1997c; 1997d, 2-3; 1997e, 2-3; 1998a, 5; 1999b, 11; 1999d, 10). While these concerns are retained in later analyses, they tend to be expressed in terms of the failure of TIAs to balance narrow economic considerations with "minimum obligations to respect basic labour rights and standards and minimum environmental and health and safety regulations" (1996a, 7), and "obligations on foreign investors and transnational corporations" (1998a, 1). In addition to the interplay between the rights and responsibilities conveyed by TIAs, later CLC texts more explicitly recognize the fact that increased corporatefreedomgenerates 22  advantages for certain segments of society at the expense of others.  For example, the  organization notes that despite increased unemployment, declining job quality, and the erosion of democratic accountability, "[fjrom the point of view of Canadian capital, the [NAFTA] agreement has worked out quite well" (1997a, 5). Acknowledgement of the benefits reaped by elites is indicative of the development of a more explicit class dimension within CLC analyses of trade and investment liberalization. As the Congress explicitly notes in 1999: ...while the elites are advancing on their project of economic integration based onfreetrade and neo-liberalistn, most people are going through a process of social disintegration. These economic and social disparities will not be resolved without thoughtful programs, redistributive policies and external assistance (1999d, 10).  The centrality of the United States The increased influence of the US under agreements like the CUFTA, the NAFTA, and the proposed Free Trade Agreement of the Americas (FTAA) is well documented in the last decade of CLC literature. Four indicators of US centrality are highlighted in particular. First, the dominant position of the US in regional trading blocks (1990d, 3; 1990e, 3; 1991b, 40; 1992e, 10). Second, the degree to which existing TIAs permit the US to use its trade law to protect national producers, despite the fact the elimination of such activities was a primary Canadian objective during NAFTA negotiations (1990e, 12; 1992a, 2; 1992e, 9; 1993c, 7; 1993d, 21-22; 1997a, 14; 1997b, 7).  Third, the increased domination of American corporations in  worldwide production, and the corresponding concentration of income and wealth in the US (1990d; 1990e, 14; 1991a, 6; 1992d, 6-7; 1992e, 12). And finally, the one-sided benefits reaped by the US in terms of trade balances, investment flows, and demand for capital and goods (1992c, 2-3; 1992d, 1-2; 11-17; 1992e, 14; 1997a, 6). Social programs The anticipated and documented negative effects of TIAs for Canadian social programs has been a significant area of concern for the CLC over the last decade. In some analyses, it is 23  argued that TTAs will have a direct impact on social programs (1987b; 1990e, 10), in particular because of increased pressure to 'harmonize' higher Canadian with lower American standards (1992d, 8; 1996a, 27).  Following the adoption of the CUFTA, for example, the Congress  suggested that the business community "is using free trade as a club to push the government to slash social programs and weaken standards" (1990e, 12). The result of such efforts is that: Pressuresflowingfromthe [CU]FTA have led to an erosion of key national institutions which give Canadians a sense of community and define us as a society very differentfromthat of the United States - institutions such as Medicare and the Canadian Broadcasting Corporation. The [CU]FTA has generally worked to undermine the public sector which embodies Canadian values (1993c, 4).  Similarly with respect to the MAI, the CLC notes that: Those of us who are concerned about the future of not for profit health and social services rightly fear that giving foreign corporations the right - repeat the right - to set up in Canada and the right to qualify for government support on the same basis as not for profit agencies will set the stage for a U.S.-style health care, education, and social services system (1998a, 6).  In addition to considering the direct repercussions of TIAs for social programs, the CLC proposes that these agreements will yield significant indirect effects on Canadian health, education, income support, and other services. On this view, the erosion of social programs is indexed to several broad trends, each of which the Congress connects to the ratification of TIAs. These trends include: the general economic slump Canada experienced throughout much of the 1990s (1997a, 7); the decline in employment levels that precipitated a corresponding decline in public revenue, thereby increasing the cost of programs like unemployment insurance and heightening business demands for regulatory concessions and lower taxes (1987c; 1992d, 8; 1993d, 19; 1999d, 4); and the neoliberal revolution against the social state, a political, economic, and ideological assault that has motivated a preference for smaller government and increased marketfreedom(1997a, 7; 1999d, 4, 9).  13  Investment With respect to documenting the implications of the current model of trade and investment liberalization, a final area of concern for the CLC is investment. 24  In addition to  predictions regarding the loss of regulatory control over investment, the CLC evaluates the effects that certain TIAs - primarily the CUFTA/NAFTA and the MAI - have had on investment in Canada (1990e, 15; 1990f, 59:6; 1991b, 40; 1992d, 7; 1992e, 8; 1993c, 2; 1993d, 24; 1995d, 10-11; 1996a, 28; 1997d; 1997e, 1998a; 1999b, 4-5). These evaluations generally conclude that trade and investment liberalization has failed to yield a significant net inflow of new investment into Canada (1996a, 29; 1997b, 23). Mexico and the US have instead emerged as the preferred locations for new investment in North America, not in small part due to their lower wages and regulatory costs (1992d, 7; 1996a, 28; 1999c, 6). The evolution of the CLC's descriptive position While the above discussion indicates that a core set of themes have remained prominent within CLC literature on the effects of trade and investment liberalization, the way in which these themes are presented has evolved. In particular, there has been a gradual transition away from a national focus, and towards a more outwardly oriented or international approach: that is, a position that looks beyond the implications of TIAs for Canada and Canadian citizens. This evolution is reflected in two related developments. To begin with, CLC analyses have become less nationalistic in the sense that later texts do not focus specifically on the threat posed by TIAs to Canadian economic and political independence, jobs, or employment standards. Early texts tended to rely on claims like "the trade deal... is threatening our very existence as a country" (1991b, 40) to foster opposition to the CUFTA and the NAFTA. This expression of nationalism is consistent with the view that TIAs are advanced by a predatory US government and a profit-seeking business community with no national allegiance. In later analyses, however, the Congress suggests that pro-free trade businesses and governments have betrayed Canadian citizens and the citizens of other countries by focusing on market expansion and neoliberal restructuring to the exclusion of the interests of 25  the majority of people. In 1999, for example, the CLC writes that "Canada's trade relationships have consistently overshadowed concerns about human security and human rights with regards to Canada's trading partners" (1999d, 5). Unlike earlier analyses that separated Canadian interests from the interests of other TIA signatories, this characterization emphasizes the ways in which citizens share concerns about the unbalanced nature of the liberalization agenda being advanced by elites.  As the Congress  acknowledges in a 1996 text: Integration of North America 'from above' on the basis of the neoliberal 'free trade' agenda is beginning to give rise to integration 'from below' as labour and popular movements begin to discuss and organization for change on the basis of alternative ideas on how to structure and manage the ongoing economic integration process (1996a, 1).  This recognition of the existence of shared popular interests has inclined the CLC to set aside an exclusive focus on issues confronting Canada to forge instead analyses based on the global dimension of the many problems associated with the current model of trade-led integration. The second way in which CLC analyses have evolved is in the degree to which the organization is moving beyond what I call the 'us versus them' dynamic: concern over jobs or investment lost to the US, Mexico, or the developing world. Early comments define the interests of Canadian workers in opposition to the interests of workers in lower wage, lower standard jurisdictions, for example, Mexican maquiladoras: "[T]he Mexican Maquiladora has become an important tool for corporations, a giant pool of scab labour, though which to extract concessions at the bargaining table, to undermine Canadian labour and social standards and to weaken regulatory regimes" (1992b, 41). In later analyses, however, the CLC places greater emphasis on working people's common interest in resisting corporate restructuring through international activist and coalition work: The integration process has profoundly altered North-South relations at a popular level as exchanges between activists, workers, farmers, environmentalists, teaches, women, etc. of the three counties have generated linkages beyond abstract expressions of solidarity to linkages based on mutual interest and the discussion of shared experiences... The objective has been to develop a  26  common platform and a continental strategy which strengthens national capacities and allows decisive intervention infreetrade processes (1996a, 76-7).  In essence, the CLC is moving away from the notion that workers in other countries are gaining at the expense of Canadian workers, and towards a position that recognizes the need to build common cause with workers around the world to fight, not just particular instantiations of tradeled economic integration, but the economic platform motivating this direction of development.  14  This recognition is accompanied by the replacement of an understanding of the effects of TIAs premised on a dichotomy between Canada and the US/Mexico/developing world with a dichotomy between the neoliberal interests driving the trade liberalization agenda and the interests of workers/citizens. For example, the tendency of the current liberalization agenda to advance corporate interests at the expense of the interests of citizens is highlighted through recognition of who enjoys access to key trade negotiations: Business leaders, empowered by their success in shaping NAFTA, were invited to play an even more direct role in defining the direction of the proposed new initiative coming out of the Miami Summit. This model of involvement stood in stark contrast to the treatment of trade unions, NGOs and other social organizations who were kept outside the official talks creating the unbalanced approach which continues today (1999d, 3).  This nascent class-based interpretation provides a better foundation from which to find common cause for coalition-based activism despite the diverse conditions within, and experiences of, countries around the world. But as will be discussed in the following Chapters, the CLC arguably fails to build strategies on this foundation that motivate, or are consistent with, the implied broad-based and internationalist approach. Indeed, CLC is accused of promoting a strategic approach that advances only the interests and goals of a core group of predominantly Northern labour organizations.  THEME IV. AGREEMENTS  CLC STRATEGIZING AROUND TRADE AND INVESTMENT  Given the above discussed concerns about the nature, forces behind, and effects of trade and investment liberalization, it is not surprising that the CLC has devoted considerable attention 27  to the development of strategies to resist TIAs. CLC strategizing generally takes aim at the model of integration that informs existing and proposed TIAs: a model that grants rights to corporations at the expense of national governments, places market access above societal needs, and disregards the impact of liberalization on labour, the environment, culture, and so on. Since this model emerged as a coherent package in the Canada-US bilateral agreement, and was later expanded and re-codified in the NAFTA, I refer to it as the CUFTA/NAFTA model of integration. However, the World Trade Organization (WTO) agreements and the proposed MAI and FTAA are premised on the same set of principles. If adopted, these agreements will further 15  entrench the CUFTA/NAFTA model in the global economic order. Initial CLC strategizing: abrogating the CUFTA and the NAFTA Following the ratification of the CUFTA in 1989, the CLC advocated the abrogation of this agreement and withdrawal from negotiations concerning its expansion to include Mexico (1990d, 1; 1990e, 16; 1990f; 1991b, 40; 1991c; 1992a, 1 and 4; 1992c, 1; 1992d, 9; 1993d, 33). The organization's arguments for this position primarily reference the negative impacts of the CUFTA for employment, public services, investment, and so on, and the anticipated worsening of these repercussions under a broader and more comprehensive North American agreement. In short, the CUFTA was perceived as a threat to Canada's independent existence as a country, while any extension of this agreement would "make matters worse" by "acceleratfing] the negative effects" (1991 b, 40; also 1992b, 40). In addition to advancing concerns about the negative implications of the CUFTA, the CLC rejected the prospect of according any support to subsequent continental negotiations on the grounds that such a stance would amount to a legitimation of the Canada-US deal (1990d, 1; 1990e, 13; 1991c). Anything short of outright rejection of the nascent NAFTA was tantamount to tacitly accepting the notion that "the [CUJFTA is a fait accomplis; that it is with us for good 28  and that we should make the best of a bad situation" (1991b, 40). The Congress believed that this would constitute a particularly dangerous admission in the Canadian context given this country's need for the kind of nationally focused, managed-trade approach with which the labour movement enjoyed some success in the 1970-80s. As the organization stated in 1992: "In our 16  campaign to stop the ratification of NAFTA, and to abrogate the Canada-US FT A, the CLC will pursue the alternative polic[y] of managed trade that raises standards and improves conditions for working people" (1992c, 2). The CLC considered managed trade to be better suited to Canada's particular economic and geographic situation given the high levels of foreign ownership, lack of sophisticated manufacturing, and over reliance on resource exports that accompany our proximity to, and reinforce our dependence on, the US market (1997a, 2-3). Locating liberalization "within a context of managed trade and effective adjustment policies" is therefore integral to the development of a model of economic integration that permits Canadian governments to retain "a significant role in shaping [the Canada-US] relationship in our national interests" (1997a, 3). It is important to note that the CLC's initial desire to abrogate the CUFTA and withdraw from NAFTA negotiations does not entail that the organization is opposed to international trade. As the Congress states in a 1999 document, "our position has not been and is not narrowly 'protectionist', though it is frequently caricatured as such" (1999b, 2; see also Interview subject 5, 1-2).  The CLC, along with other parts of the labour movement, have long supported the  expansion of economic and trade ties with other countries, in particular the reduction of tariffs through the General Agreement on Tariffs and Trade (GATT) (1997a, 2; Interview subject 2, 7; Interview subject 5, 2). However, this support is premised on the belief that the relaxation of certain kinds of barriers between states can be organized in a manner that will yield beneficial outcomes. The liberalization of trade can contribute to economic growth and enhance the well 29  being of workers if it enlarges the sphere within which competitive processes operate, and thereby encourages firms to become more efficient and to increase productivity (1997a, 9; 1997b, 1; 1999b, 1). In essence, trade can create positive potential for increased employment, economic growth, and higher earnings (1995c, 3). The CLC also suggests that the liberalization of trade can serve as a lever for international development, provided that appropriate adjustment mechanisms are in place. Accordingly, the organization supports the provision of wider access to Northern markets for developing countries (1999b, 1-2). Rather than springing from a general suspicion of international trade, the CLC's skepticism about the CUFTA, the NAFTA, and subsequent TIAs flows from concern about the form of integration being entrenched through these agreements. In other words, the initial desire to abrogate the CUFTA and the NAFTA was "not a question of whether or not Canada trades or doesn't trade", but of the way in which we choose to shape our trading regime (Interview subject 5, 1-2). As one member of a Canadian union notes: [D]o we want international trade? Absolutely! 1 love bananas on my cereal in the morning, and we don't grow bananas in Canada, and I love my coffee. But there are things that we can do better and differently... you have to approach tradefromthe respect for the other country and other peoples you're dealing with and you're actually looking for mutual gains (Interview subject 2, 78).  In short, then, it is because the CLC believed that the unbalanced form of liberalization reflected in the CUFTA and the NAFTA would not permit trade to realize the above sorts of positive outcomes that the Congress advocated the rejection of these agreements. 'The Morning NAFTA': moving towards an alternative model of integration While CLC literature suggests that the organization remained committed to abrogation until approximately 1994, calls for the cancellation of TIAs ceased to made explicit following 17  the ratification of the NAFTA. Around this time, the Congress began to focus instead on the possibility of modifying or revising the profoundly inadequate terms of existing (and proposed) TIAs. In 1995, for example, the CLC describes the potential expansion of the NAFTA to include 30  Chile as an "opportunity to remedy some of the flaws in the agreement" and thereby "launch a different kind of integration process" (1995c, 2). Similarly, the organization notes in 1996, 1997 and 1999 that its primary goal regarding the NAFTA is to change this agreement through the insertion of 'social provisions' (1996a, 67; 1997c; 1999d, 14). This goal is motivated by the CLC's belief that the "wider lessonfromthe NAFTA experience" is the need for globalization to proceed on the basis of social as well as economic concerns (1996a, 9). When confronted with the MAI in 1997, the CLC similarly maintained that international trade and investment rules are needed, but cautioned that rules that beginfroma market-oriented model of integration concerned primarily with business facilitation are inadequate. To construct a more adequate set of rules, TIAs must include provisions addressing social and environmental as well as economic goals (1997a, 14; 1997d, 11). This understanding of what constitutes an appropriate trade structure is reflected in the Congress' argument that "Canada may have to seek specific changes to WTO rules" in a wide range of areas, including cultural protection, government support for industrial research and development, intellectual property, and drug and life form patenting (1999b, 3). More generally, the organization goes on to note that the "WTO must also be changed from what it is today - a nameless, faceless, non-democratic and inaccessible body which sets important rules for the global economy in the absence of genuine participation by 'civil society'" (1999b, 3-4). As the above discussion demonstrates, the ratification of the NAFTA marks the emergence of a second wave of organizational strategizing around TIAs. Instead of campaigning for abrogation, the CLC seeks to motivate the rejection of the CUFTA/NAFTA form of integration by illustrating that an alternative, more adequate political, economic, and social vision is available (1992e, 15-16; 1993c, 4; 1995a; 1995d; 1996a; 1997a; 1997b; 1997d; 1998a; 1998b; 1999b; 1999d). This alternative vision is then used to highlight problematic aspects of 31  the current form of integration, and to draw attention to the fact that (a different model of) trade and economic development could indeed serve broader societal needs. The content of the CLC's alternative vision is articulated through a set of general principles around which the organization believes integration should be structured. These principles cover a wide range of topics and suggest a number of different reasons why, and ways in which, power should be redistributed away from unaccountable trade or corporate bodies and towards citizens, national governments, and supranational institutions. The more balanced form of economic integration to which this package of principles will (allegedly) give rise diverges from that established through existing and proposed TIAs insofar as it is expected to harness genuine social and economic progress to further liberalization. In other words, the CLC believes that this alternative approach should tie increased integration to the achievement of economic and social well being for a majority of people, thereby contributing to the creation of just and sustainable societies (1992e, 15; 1996a, 8; 1997a, 17; 1998a, 7-8; 1999b). Four principles tend to be accorded significant attention in discussions of the construction of the CLC's alternative vision of trade and investment liberalization. The Congress maintains that integration ought to proceed in a manner that is conducive to establishing and protecting: •  Economic well being, including diversity in economic forms and the writing off of foreign debt (1990f; 1992a, 2; 1992e, 15; 1993d, 33; 1995d, 15; 1996a, 70; 1997a, 17). For the CLC, national economic well being is contingent on the ability of states to build an economic agenda that will advance their particular strategic interests.  This goal requires that state  governments retain the ability to control development, and to shape it in a manner that permits long-term economic planning and coordination towards the goal of a 'high-road' economy (high-wages, high-standards, high technology, etc.). Governmental interference in the economy to achieve this goal is essential because market economies are unable "to 32  provide social and economic benefits to working people unless they are subject to a significant degree of active management" (1997a, 17).  In short, there is a fundamental  inconsistency between the market's interest in profit maximization and societies' interest in providing adequate health, safety, social, and labour standards (1996a, 8; 1999d, 2-10). Active economic management does not mean that all governments must impose a uniform set of economic or social policies worldwide. The CLC believes that countries must be permitted to establish standards appropriate to their own economic, social, political, and geographic situations.  For the Congress, such support for economic diversity offers a  counterbalance to the homogenizing tendency of global capital, a force that has created pressure to roll-back social, labour, and environmental standards to the lowest common denominator. The Congress argues, for example, that the "global harmonization of standards is an explicit aim of the WTO", a goal that this organization strives to achieve by using dispute settlement mechanisms to discipline national governments (1999b, 10-11). At the same time, CLC support for economic diversity stems in part from the organization's recognition of the fact that there are fundamental inequalities that structure the global economy. The Congress acknowledges that developing countries have a particular interest in retaining controls on investment (1992e, 13; 1998a, 7; 1999b, 5), and that efforts to assist these countries should involve a significant rescheduling, or the writing off, of foreign debt (1990f; 1992e, 16; 1995d, 15). With respect to Mexico, for example, the CLC argues that debt elimination will "allow more room for wage growth and for increases in social spending" and "would also result in an expanding rather than a shrinking [North American] market" (1995d, 15). Conversely, trade-led economic development that facilitates corporate relocation on the basis of cost considerations alone assigns countries like Mexico  33  "the role of suppliers of cheap labour, making it very difficult to build an expanding domestic economy on the basis of rising living standards" (1992a, 3; 1992c, 1). Rules to control international corporations and to regulate investment activities (1993b, 1; 1993d, 33; 1995d, 10; 1997a, 14-15; 1997d, 11; 1998a, 2; 7-8; 1999b, 15; 1999c, 10; 1999d, 17). The CLC's conviction that rules to govern international economic activities are needed to permit the development of a more balanced and sustainable form of integration flows from three main observations.  First, the absence of rules preventing corporations from taking  advantage of'attractive' (read low-cost) investment climates around the world through actual relocation or the threat of relocation has played a significant role in creating an economic environment characterized by lowest common denominator development. Second, without rules governing international economic activity, larger, more powerful states (especially the US) are able to "manage trade and investment in their own interests" while smaller states are "unable to do much about it" (1997a, 14). The CLC argues that the US has used both the NAFTA and the WTO in this way, and that Canadian policies have suffered as a result (1999b, 3). Finally, present trade and investment rules operate in a one-sided or unbalanced manner, permitting business investors and corporations to benefit at the expense of working people, the environment, and so on (1998d, 1,5; 1999b, 1). On the basis of the above observations, the CLC calls for development of strong and enforceable rules concerning international trade and investment activities in accordance with which both corporations and governments will be obliged to act (1993d, 33; 1999b, 1). the CLC, one potential site for the development of these rules is the WTO.  For  As a large,  multilateral forum, the WTO has greater potential to permit countries to establish rules that allow for some governmental interference in the economy, while also providing smaller states with greater leverage in negotiating with powerful countries (1990e, 3-4; 1991c; 34  1993d, 34; 1997a, 15). In addition, the CLC argues that the development of rules at the WTO is preferable to the pursuit of further regional integration along the lines of the NAFTA and the FTAA. The absence of social provisions in regional agreements combined with the lack of genuine interest in pooling sovereignty within hemispheric or continental institutions suggests that international bodies may be better able to deal with the protectionist interests of the US, and to develop a broader agenda for integration (1997a, 15-6). Despite any potential benefits associated with the establishment  of international  investment rules through a multilateral institution like the WTO, the CLC recognizes that "the effectiveness of the WTO is a double-edged sword" (1999b, 3).  If WTO rules are  narrowly interpreted or used to challenge important Canadian policies, there is significant potential for this institution to yield regressive outcomes. Hence the Congress' claim that the WTO must be fundamentally changed to permit a more balanced, democratically accountable, and accessible form of liberalization (1999b, 3-4).  Accordingly, CLC  comments about the potential of the WTO as a site for investment regulation should be read in terms of the organization's overarching desire to secure an alternative approach to integration. The ability of national governments to direct domestic economic, social and industrial development in the public interest (1992a, 4; 1992c, 2; 1992d, 19; 1992e, 15; 1993c, 4; 1993d, 33; 1995a; 1996a, 8; 1997a 17; 1999b, 16; 1999c, 10; 1999d, 17). This feature of the CLC's alternative model may in fact be a precondition for the realization of the other three. Governments can play an important role in mitigating the often harsh and unequal effects of the market, in balancing market interests against societal needs, and in determining and implementing national priorities like those contained in the above recommendations. Given this potential, the CLC insists that economic integration cannot completely attenuate the 35  ability of governments to manage trade, regulate investment, and design and implement economic, social, labour, industrial, cultural and other policies to serve their own strategic interests. For Canada, these interests include such things as low unemployment, the creation of 'good' jobs, enhanced manufacturing capacity, obtaining more value from resource exports, increased public investment, managed trade, and effective adjustment policies (1992d; 1992e, 15; 1993c, 4; 1993d, 33; 1996a, 8; 1997a, 17; 1999c, 10; 1999d, 17). A social dimension for TIAs that addresses such things as the need for democratic reforms, benefits for citizens such as reduced inequality and increased standards of living (1992c. 2; 1998a. 2). and protection for labour rights and standards (1992d, 9; 1992e, 15; 1995a; 1996a, 66-7; 1997d, 1-2; 1999b, 2-4; 1999d, 17). This is the component of the CLC's alternative trade and investment agenda to which a great deal of relatively careful strategic attention has been devoted. The social dimension of trade refers to a range of political, economic, and social issues affected by TIAs that are not at present considered in negotiations regarding the value, efficacy, or need for further liberalization. The CLC regards this lack of consideration as problematic because it has led to the development of a form of integration that is almost exclusively motivated by economic interests (1995b, 2; 1997d, 1; 1998a, 7-8; 1999b, 1). Social dimension arguments offer a response to the one-sided nature of TIAs by providing the CLC with a vehicle through which to highlight the need to recalibrate the neoliberal economic model to permit - and even encourage - consideration of such things as labour standards, national sovereignty, poverty, and environmental protection: ...unbalanced liberalization which strengthens the bargaining power of mobile capital vis-avis governments and workers is unacceptable and undemocratic... Canada should not support mew liberalization initiatives until a strong social and environmental framework is put in place, and this should be the central focus of the coming WTO round (1999b, 2).  36  The social dimension of trade has become a key point of reference for many organizations concerned to create a more balancedframeworkfor further integration: that is, aframeworkin which it is recognized that TIAs generate parallel social and economic implications, and in which the terms of agreements are shaped so as to recognize and respond to these implications. Seeking recognition of the importance of the social dimension of trade does not necessarily demand a complete rejection of current instruments of liberalization. It can instead motivate efforts to 'level the playing field' with respect to the amount of weight attached to 'economic' versus 'social' considerations in evaluations of appropriate trade and investment provisions, or a reinterpretation of TIAs such that they prioritize the social sustainability of trade arrangements over potential economic gains. As the CLC notes with respect to the MAI, "the new global economy needs a new set of rules to make sure that it works in the interests of workers and citizens, and not just in the interests of mobile capital" (1998a, 9). Defining the social dimension of trade: the centrality of labour rights in CLC analyses Although many CLC documents from the late 1980s and early 1990s do not refer explicitly to the 'social dimension' of trade, they do lay the groundwork for this strategy. This is reflected in claims that the abrogation of TIAs should be followed by the promotion of a "social agenda in North America and within the hemisphere" (1992c, 2); that "corporate competition must take place within social and ethical rules" (1990f, 59:5); and that developing "a 'social framework' for the international trade system" (1999b, 3) should be the first priority in any new trade negotiations.  In building on this foundation in later analyses, the CLC tends to offer  general statements concerning the sorts of considerations that belong within the social dimension of trade.  For example, one organizational representative states that the social dimension  "includes what's happening in poverty, what's happening in health care, what's happening in 37  social policies and social services" (Interview subject 5, 6). A 1999 text speaks of a social framework for the WTO as including such things as democratic reforms, a workers' right clause, and measures to promote governmental capacity to regulate (1999b, 16). Statements throughout CLC literature that draw attention to the lack of consideration within TIAs for environmental protection, national and international inequality, debt rescheduling for developing countries, and managed trade and investment, are also relevant to determining the content of the CLC's vision of a social dimension for trade (1990b; 1990f; 1992a, 4; 1992c, 2; 1992d, 9; 1992e, 15-6; 1993d, 33; 1995d, 15; 1996a; 1997a, 14-17; 1998a, 7-8; 1999b 15; 1999c, 10; 1999d, 17). Although a wide range of issues are clearly identified as falling under the auspices of the social dimension of trade, the CLC accords the most attention to one small subset: namely, the protection and advancement of labour rights and standards. Organizational analyses of the social dimension of trade often focus largely on developing ways in which TIAs can be opened to the consideration of labour rights. That the CLC defines the social dimension of trade primarily in terms of workers' rights is reflected in the tendency to equate social goals with labour goals. In a 1996 text, for example, the Congress refers initially to the "idea of linking trade liberalization with the achievement of social goals" but then goes on to explain that "[precedents for a linkage of labour rights and standards with trade [already] exist" (1996a, 60).  The priority status  attached to labour rights is similarly manifest in the CLC's contentions that its "most immediate priority" for the NAFTA is establishing "afloorof enforceable workers' rights" (1996a, 82); and that the organization's "number one concern" regarding the expansion of hemispheric trade ties is securing "more effective protection of workers' rights" (1995c, 2). In addition to the above kinds of claims, the centrality of labour rights in CLC strategizing is apparent from the argument that respect for these rights is considered to be a precondition for securing improvements in other areas: 38  [F]irst o f all you've got to get the core labour standards. I f you have the core labour standards... and you have the real right to form democratic trade unions without people being k i l l e d and j a i l e d . . . you w i l l find [that] with the support o f the international labour movement and others... people w i l l gradually improve their standard o f l i v i n g (Interview subject 5, 8).  The notion that labour rights are a prerequisite for the achievement of a higher standard of living is expanded upon in a 1999 document. In this text, the CLC states that protection for the rights of working people are "a central building block of afree,equal and democratic society" and that the repression of unions and union organizing facilitates the perpetuation of undemocratic regimes (1999b, 7).  19  Accordingly, the CLC maintains that "it is no accident" that political shifts  towards democracy have been "strengthened by the emergence of strong labour movements, as in South Africa, South Korea and Brazil" (1999b, 7). The vehicle through which the CLC most often proposes to introduce measures addressing workers' rights to TIAs is the social clause (SC). A SC is a provision or set of provisions to be added to existing and proposed TIAs the content of which is most often defined in terms of labour rights. As will become apparent in Chapter two, particular SC proposals vary with respect to the part of the agreement onto which the provision(s) in question should be added, and the degree of enforceability that these provision(s) would enjoy.  Some groups  recommend the placement of a SC within the text of agreements in order that its provisions can be enforced in the same manner as the rights of investors; while others propose including SC provisions within non-binding preambles to TIAs.  What unites SC proposals across such  procedural divergences, however, is the notion that the clause will establish a minimum set of workers' rights and labour standards that all TIA signatories would be obliged respect in order to gain penalty-free market access through the agreement in question. In this context, what count as minimum labour rights or standards is most often defined in terms of 'core' International Labour Organization (ILO) conventions  addressing collective  bargaining, freedom of  association, and the prohibition of forced labour, child labour, and discrimination in 39  employment.  However, there is some disagreement over which conventions ought to be  included in this classification.  ENDNOTES  Unless otherwise noted, all parenthetical citations in this Chapter refer to literature produced by the CLC. A complete list of these sources in chronological order can be found in the appendix. The politics of austerity, also referred to as the politics of scarcity orfiscaldividend/deficit politics, is described by Prince as "a debate over the appropriate size and role of the federal government in relation to the provinces, the economy, and civil society" (Prince 1998,44). Outlining some of the elements central to this debate, Bakker argues that the politics of scarcity is essentially: 1  2  .. .the viewpoint that we can no longer afford the welfare state as it is a costly drain on our scarce resources. In an internationally competitive environment, the argument goes, we have no choice but to divest ourselves of these costs. In particular, this means decreasing the debt load through cuts in [Keynesian Welfare State] related services and a roll-back of some egalitarian gains that have been part of the rise of the welfare state (such as income redistribution and equal access to services like schools and health). It has also meant providing less funding for many of the transfers that were shared-cost programs between the provinces and the federal government (Bakker 1996, 5-6).  These tools include government procurement; grants and subsidies for regional development, research and development, or training; restrictions on capital and investment flows; tariffs; public sector procurement; and so on (CLC 1996a, 1; 1997a, 19). 1 will discuss the CLC's understanding of the effects of TIAs in greater detail in section three. The CLC does not explicitly state whether these objectives are pursued as part of a conscious political, economic, and social vision on the part of corporations, or whether they are the 'unintended consequences' of what business leaders see as a desirable economic platform. However, the tenor of some organizational comments suggests that the decision to pursue a development strategy premised upon achieving competitiveness through reliance upon low wages and standard competition it is a deliberate choice on the part of corporations. In a recent submission on the proposed Free Trade Agreement of the Americas (FTAA), the CLC states that "North American integration is a corporate-driven process and the accompanying restructuring of the state... reflects the strategic interests of transnational capital" (1999d, 5; emphasis added). Similarly, a 1993 text argues that "[t]he real business objective is not to sell in the Mexican market but to take advantage of low Mexican wages, and weak Mexican social and environmental standards" (1993d, 26; emphasis added). These comments suggest a reading of the corporate agenda as a deliberate attempt to secure a particular policyframeworkthat has been to some extent disguised in less antagonistic language, for example, in terms of the necessity of liberalization in order to compete in an increasingly global economy. The goal of securing low-cost labour applies in particular to ventures in the developing world, but this corporate priority is also reflected in opposition to higher wage and standard levels in Canada (Bakan 1997, 84; Canadian Press Newswire, Jan. 16/97; Fraser Institute, 1996; 1998; Globe and Mail, June 18/98, A l ; Sept. 4/98, B5; Apr. 14/99, B8; Mihlar 1996; Vancouver Sun, Feb. 2/99, Al). When speaking of the role of the US in advancing the liberalization of trade and investment, one could argue that there should be a distinction between the priorities of the American government and the priorities of American corporate capital. Unfortunately, it is not always clear which body the CLC is referencing, or whether the Congress believes that no such distinction should be drawn. The location of MAI negotiations at the Organization for Economic Cooperation and Development (OECD) is taken as evidence of the influence of industrialized countries in shaping the global economic order because the OECD is an association of advanced nations. In other words, despite both the anticipated impact of an investment agreement on developing economies (1997e, 1-2), and the opposition of these countries to the ratification of such an agreement (1997d, 3; 1999b, 5), the MAI was developed in a context that excluded the developing world. For CLC predictions regarding the impact of an investment agreement on the developing world, see 1997d; 1997e; 1998a; 1999d. While the CLC notes that national governments play a direct role in securing the adoption of TIAs and appropriate policy reforms, the above discussion of the CLC's characterization of TIAs makes clear that the organization also explicitly recognizes that these agreements place limitations on the policy-making authority of governments. In  3  4  5  6  7  8  9  40  other words, the CLC is carefiil to point out that governments both act to implement particular liberalizing measures, and are acted upon by certain external forces that (at least in part) constrain their ability to make policy decisions. In discussing CLC analyses of the effects of TIAs, it is important to note that the organization does recognize that particular macro-economic policies - including a high dollar, overvalued exchange rates, and zero inflation targets have helped to bring about some of these highlighted implications. However, the Congress does repeatedly emphasize that trade commitments are a significant independent cause of these effects (1991a, 1-2; 1993d, 9; 1996a, 12-14; 1997a, 7; 1997b, 16-17; 1999c, 2). " Canadian businesses are exposed to direct competition from the US and Mexico as a result of the National Treatment requirement in TIAs like the NAFTA and the proposed FTAA. National Treatment requires foreign and domestic enterprises to be treated in an identical manner. State governments cannot 'discriminate' between domestic and foreign operations by reserving certain contracts for domestic businesses; by making subsidies available only to these businesses; by permitting two-tier pricing in areas like energy; or by requiring such things as technology transfer or the hiring of local workers. If a foreign government - or in some cases a foreign business suspects that a domestic policy is having a discriminatory effect, it can challenge that policy under the terms of the relevant TIA. See footnote 8. The CLC summarizes these trends in a 1997 text: 10  12  13  While much of the blame lies with macro-economic policy, the CU[FTA] and NAFTA have certainly been factors in what has been called the Great Canadian Slump of the 1990s. The slump in tax revenues and increase in social program costs caused by the steep and prolonged recession of the early 1990s led to rising public debts. Rising debt levels - in combination with continuing bad macro-economic policies and rightwing ideology - have resulted in huge cuts to social programs and public services... Employers and rightwing government have pointed to economic integration as a major reason to cut income support programs for workers to US or even lower levels. When it comes to issues like Unemployment Insurance, minimum wages and trade union rights, the employer argument is always that Canada will be made 'uncompetitive' if it adopts higher standards than the US... (1997a, 7).  One interview subject notes that an emerging international orientation in strategizing around trade and investment liberalization around the time of the NAFTA was evident in the work of other organizations as well, in particular, the large anti-free trade coalition that became known as the Action Canada Network (ACN): 14  [I]n the fight against the firstfreetrade agreement, the Network and member organizations were incredibly nationalistic and incredibly domestic focused in terms of the impact. But in the period between the [CU]FTA and NAFTA something else happened. The work that we did around NAFTA put us into an international orbit. I mean, we really were dealing with the concerns of people on the ground in Mexico and in the US, and were working some very interesting international strategies around that. So I think that the international shift had begun to really develop in that period around the NAFTA fight (Interview subject 7, 6).  Although activists were successful in securing the defeat of the MAI in 1997 in the context of the OECD, the agreement has resurfaced at the WTO as the General Agreement on Trade in Services (GATS). The CLC argued against the relocation of investment regulation to the WTO on the grounds that the MAI had 'unresolved' implications for democracy, and because of the opposition of developing countries to the negotiation of an investment agreement (1999b, 5; 1999d, 7). The success enjoyed by the labour movement with respect to shaping trade and economic integration to promote Canadian interests is reflected in such developments as: the Auto Pact, a managed trade agreement that guaranteed production in Canada broadly proportional to our share of the continental market; the National Energy Policy that gave advantages to Canadian producers through lower prices; and the Foreign Investment Review Agency that subject foreign investment to scrutiny to determine if it would be beneficial to Canada (1997a, 2-3). Although the CLC ceased to explicitly call for the abrogation of TIAs following the ratification of NAFTA, representatives suggest that abrogation remains a bottom line strategy for the CLC. As will be discussed in Chapter three, the organization moved awayfromoutright calls for abrogation in light of a growing awareness that it was no longer politically expedient, or strategically efficacious, to ground resistance on such a demand. Although the CLC suggests that rules governing international economic activity are needed to restrict the ability of countries like the US to organize trade in their own interests, the previous section made clear that the organization also argues that TIAs should permit governments to structure domestic economies in accordance with their strategic interests. What is the difference between the two kinds of actions described in these claims? Both are undertaken by a single country in accordance with national priorities, so the difference is not between uni- and multilateral action. Both require some evaluation of the needs of this country relative to the requirements of international economic arrangements, so the difference is not the result of engagement with versus withdrawalfromthe global economy. This lack of clarity suggests that the CLC needs to more clearly define what constitutes appropriate 15  16  17  18  41  national action, particularly given some of the challenges raised against the SC that will be discussed in later Chapters. For other comments on the association between labour rights and democracy, see: Christine Elwell, Human Rights, Labour Standards and the New WTO: Opportunities for a Linkage. A Canadian Perspective (Mon Centre for Human Rights and Democratic Development, 1995), 41; Virginia A. Leary, "Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, U.S. Laws)," in Fair Trade and Harmonization. Vol. 2: legal analysis, eds. Jagdish Bhagwati and Robert E. Hudec (Cambridge: MIT Press, 1996), 22; and Eddy Lee, "Trade union rights: An economic perspective," International Labour Review vol. 137, no. 3 (1998): 313;3189. 19  42  CHAPTER T W O  Social Clauses and Labour Rights: Protecting the Interests o f Working Peoples Within Trade and Investment Agreements And when we [the CLC] say a social clause... [w]hat we are saying is that the legislative framework must provide for workers in all... countries to have the right to form democratic trade unions, participate infreecollective bargaining, and to improve their standard of living (Interview subject 5, 6).  /. THE SOCIAL CLA USE PROPOSALS OF THE CLC The SC has become the most visible and widely identified of the CLC's responses to the current model of trade-led integration (CLC 1993a, 2; 1995a; 1996a, 69; 1997a, 19; 1997b, 29; 1997d, 1-2; 1998b, 2; 1998d, 1; 1999b, 6; 1999d, 12, 17). As stated in the previous chapter, the immediate aim of the clause strategy is "to incorporate strong enforceable provisions regarding labour rights and standards" in all existing and proposed regional and multilateral agreements on trade and investment (1997d, 2). However, locating the SC in the context of the CLC's more general concerns about the inadequacies of the current model of integration suggests that clause proposals can also be understood as (at least a partial) response to a more general policy concern that has motivated much of the organization's work on trade and investment liberalization in the 1990s: namely, "how to ensure that the possible gains from closer trade and investment ties are equitably shared" (1997b, 29).  To the extent that the Congress believed that a more fair  distribution could no longer be realistically achieved through campaigns for the abrogation of existing TIAs, the modification of these agreements to secure some benefits for working people was substituted as a new starting point for trade activism. The SC strategy of the C L C is principally developed through analyses of four key TIAs: the N A F T A , the G A T T / W T O , the MAI, and the F T A A . The following sections offer a brief outline of the SC recommendations advanced by the C L C with respect to each one of these agreements.  43  A. The N A F T A : While the C L C has not proposed specific wording for a N A F T A SC, it is repeatedly recognized that this agreement should be modified to ensure that integration is "a social as well as an economic, market driven process with safeguards to guard against [the] potential negative social and economic impacts of integration" (CLC 1995a; 1996a, 67).'  Proposals for these  modifications are advanced through a two-tier set of recommendations.  To begin with, the  Congress maintains that its "first aim" (1995a, 1995c, 2-3; 1996a, 66-7) is to insert a binding SC into the N A F T A . The N A F T A "should, preferably, be changed, principally by having binding core workers' rights clauses... inserted into the text of the agreement itself with appropriate enforcement mechanisms established to ensure that all parties adhere to the core standards" (1999d, 14). Second, the C L C notes that a "larger aim" is to convert the N A F T A from a 'free trade' to a 'fair trade' agreement. The only content ascribed to this claim is that the N A F T A should contain social and regional provisions modelled on those in the E U to "prevent an erosion of social standards and to raise standards in some areas" (1995a; 1996a, 67; 1999b, 10). Although this proposal sounds like it would encompass more than labour rights, it is important to note that the C L C points primarily to aspects of the "European social dimension" that are indexed to the promotion and protection of the rights of workers and labour organizations.  The Congress explicitly references four features of the European integration  process: (i) the establishment of common European rules through such instruments as the 1989 Community Charter of Basic Social Rights for Workers, the Social Protocol to the Maastricht Treaty of 1992, and the Commission on Labour Cooperation; (ii) the redistribution of funds from richer to poorer countries and regions to reduce economic disparities; (iii) support for the development of a European trade union movement through the European Trade Union Confederation; and (iv) support for the creation of Euro-Works councils, cross-national 44  information committees at large multinational firms which stimulate cross-national union collaboration (1996a, 68).  In addition, the Congress goes o n to caution that "while new  institutions set up by the European integration process create the potential for a socially progressive economic development path, they don't guarantee it. North Americans should be careful not to overstate this potential" (1996a, 68; emphasis added). The N A F T A S C campaign has been driven i n large part by attention surrounding the development o f the N A A L C . A s noted in the previous Chapter, the N A A L C is the side deal on labour issues negotiated by Canadian, Mexican, and American governments after agreement had 2  been reached on the primary text o f the N A F T A .  The political impetus behind the negotiation o f  the N A A L C came not from the Conservative Canadian government o f Brian Mulroney that had already pushed the N A F T A through the House o f Commons and the Senate. The N A A L C was an initiative o f then president-elect B i l l Clinton and a U S Congress concerned about the impact of continental integration on American workers (Watkins 1993, 283-84).  3  The C L C has affirmed the importance o f the N A A L C insofar as it codifies, and therefore to some extent legitimates, the establishment o f formal linkages between trade and labour issues (1996a, 65; 1999d, 13). However, the organization's initial response to the N A A L C was that "no side-deal could offset the basic logic o f N A F T A  i t s e l f and that this agreement was  accordingly incapable o f countering the anticipated negative implications for workers (1993a, 13). In advancing this position, the C L C pointed to three key weaknesses o f the side agreement. First, it does not establish a common floor o f basic rights and standards that all parties are obliged to respect, but instead only obliges countries to respect their o w n national laws and standards.  Second, it establishes a tri-national Labour Commission and Secretariat responsible  for reviewing relevant labour issues with no independence from governments and no labour representation.  Third, it creates a three-tiered system for the application o f sanctions that is too 45  narrow, permitting sanctions to be levied only with respect to health and safety, child labour, and minimum wage laws.  Crucially, this excludes complaints based on freedom o f association,  collective bargaining, and workplace discrimination (1993a, 1; 1995b, 1; 1996a, 61-2).  Given  these inadequacies, the C L C insisted that it would continue to oppose the N A F T A regardless o f the addition o f the N A A L C (1993a, 3; 1995a; 1996a, 67). Given the C L C ' s rejection o f what it considers an inadequate labour side agreement, the organization offers two reasons why the S C could exceed the potential o f the N A A L C as a mechanism with which to include protections for labour rights in the N A F T A (or other TIAs). On one hand, the Congress maintains that Canadian labour's longstanding commitment to securing a S C in the G A T T represents a better strategic choice than the side agreements negotiated in the N A F T A . "The N A F T A side-deal on labour rights and standards is far inferior to the proposal for a 'social clause'" because o f the absence o f common minimum standards, independent investigation and adjudication, and effective sanctions (1993a, 3). Unfortunately, the C L C does not at this point expand upon why the S C would succeed in establishing better measures and processes in these areas. O n the other hand, p o s t - N A F T A analyses suggest that a S C would go further in creating obligations for businesses.  This view is expressed i n terms o f  the Congress' regret over the fact that the labour side accord was not shaped into a "real social clause": one that included measures to prevent businesses from provoking competition among regions to lower standards and externalize production costs (1995b, 1). The C L C insists that the N A A L C did not come close to meeting this goal, but was rather a "smokescreen" designed to detract attention from "the real issues o f jobs, the economic model, and the deregulatory onslaught in the name o f harmonization associated with [ C U ] F T A / N A F T A " (1996a, 62). The view that a S C is a better mechanism for the protection o f labour rights than a sideagreement is further reflected in C L C commentary on the possible extension o f the N A A L C to  46  South American states under the proposed F T A A .  In addition to the (supposedly) broader and  more enforceable content o f the S C , the clause would locate workers' rights within the binding text o f T I A s , thereby alleviating altogether the need for supplementary agreements (1996a, 82). Despite these insights, however, the C L C has not limited its support for the S C to only those proposals containing measures that w i l l improve upon the template established by labour side agreement. In other words, some S C recommendations endorsed by the Congress do not call for the addition o f binding and enforceable provisions to protect a c o m m o n set o f minimum labour rights even though the absence o f such measures was a key focus o f C L C criticism o f the NAALC. B . The G A T T / W T O : In the late 1980s and early 1990s, the C L C suggested that the G A T T may be an appropriate forum i n which to push for recognition o f "minimum labour and social standards based on I L O conventions, and strengthened by provisions that penalize the practice o f social dumping" (1990£ 59:7).  4  The organization recommended that 'effect and force' be given to  basic I L O conventions on labour rights and standards, and along with the International Confederation o f Free Trade Unions ( I C F T U ) , called for the inclusion o f a S C in G A T T as the mechanism through which to achieve this goal. The proposed clause would have "require[d] all members o f the international trading system to respect basic labour rights and standards" and would have "allow[ed] for more effective enforcement o f I L O conventions through trade measures" (1993a, 2). While the rights that the C L C considered 'basic' are not listed at this point, one can reasonably assume from other texts that they include freedom o f association and collective bargaining, the prohibition o f child, the prohibition o f forced labour, and the prevention o f discrimination in employment (1996a, 69; 1997a, 18; 1998b, 2; 1999b, 6; 1999d, 17).  5  47  The end of the GATT was marked by the conclusion of the Uruguay Round in 1994, and its replacement by the WTO as the permanent  6  institutional framework responsible for the  monitoring and enforcement of liberalization initiatives within the global economy.  Unlike  documents addressing the N A F T A , the C L C endorses a specific proposal for the addition of labour rights provisions to the WTO agreements, a proposal that was actually first developed by the ICFTU. There are two things of particular note with respect to this SC proposal. The first is the fact that exact wording has been provided by the ICFTU, and that this language has been explicitly supported by the C L C and reproduced in Congress literature (Interview subject 4; Interview subject 5; 1996a, 69) :  7  The contracting parties agree to take steps to ensure the observance of the minimum labour standards specified by an advisory committee to be established by the WTO and the ILO, and including those onfreedomof association and the right to collective bargaining, the minimum age for employment, discrimination, equal remuneration and forced labour (ICFTU 1997, 18).  The minimum standards referred to in the above version of the SC are protected by seven 'core' conventions of the ILO: conventions 87 and 98 on freedom of association and collective bargaining; conventions 29 and 105 on the abolition of forced labour; conventions 111 and 100 on the prevention of discrimination in employment and equal pay for equal value; and convention 138 on the minimum age for employment (1996a, 69; ICFTU 1997, 18). Although there is some disagreement as to what is properly considered a core convention, the C L C argues that it is justifiable to include the rights protected by the above seven conventions in the SC because they are "global in their applicability" (1996a, 70). According to the Congress, these rights cannot be peculiar to the level of development or culture(s) of industrialized countries because the ILO conventions that embody them have been widely ratified by developed and developing countries alike. In the same vein, the ICFTU observes that rights respecting freedom of association and collective bargaining, forced labour, and discrimination are particularly crucial because they are 'enabling rights':  "they give workers, and employers the means to 48  negotiate improvements in wages and working conditions as trade and development expand" (ICFTU 1997, 19). The second interesting feature of C L C discussion of the WTO SC is the fact that the comments of organizational representatives explicitly note that the implementation of the ICFTU proposal would amount to only a partial success. The SC is not an adequate solution on its own but: ...only one very small piece. If we got the best workers' rights clause in the world in the WTO, that does not stop building social movements, international solidarity, campaigning against multilateral, multinational corporations, campaigning against exploitation, building human right organizations (Interview subject 5, 21). In essence, then, while C L C literature calls for the implementation of a SC at the W T O , representatives of the Congress make clear that the development and adoption of such a clause would not be sufficient to 'remedy' the flaws associated with this institution. This discrepancy highlights a key source of confusion about the position of the C L C on the SC, and the organization's interpretation of the role than the clause can reasonably be expected to fulfil. This is an issue that will be discussed in greater detail in Chapter three. Although the ICFTU has developed a relatively detailed outline for the implementation of the WTO SC that it has proposed, this information has not been reproduced in C L C literature along with the wording of the clause itself. It is unclear whether this is a simple omission, or whether it represents a deliberate departure from the implementation machinery proposed by the ICFTU on the part of the C L C , particularly in light of the fact that organizational representatives suggest that there is 'no gap' between the positions of the Congress and the ICFTU on the SC (Interview subject 4). Briefly, then, the ICFTU argues that a joint ILO-WTO Advisory Body be established to oversee the implementation of the SC, to conduct periodic reviews of how countries are applying clause principles, and to take action on the occasion of a well-justified complaint.  In cases of non-compliance, enforcement measures range from the provision of 49  technical assistance and additional resources, to trade sanctions and suspension o f an country's right o f access to W T O  The I C F T U repeatedly emphasizes  that  enforcement measures w o u l d only be applied after appropriate waiting periods to ensure  that  countries h a v e sufficient opportunity to bring domestic policies and practices into line w i t h  SC  principles.  dispute resolution.  offending  C o n s e q u e n t l y , the I C F T U m a i n t a i n s that its p r o p o s a l " p l a c e s the r i g h t b l e n d  emphasis o n opening up markets and enforcing basic rights.  T h e e m p h a s i s t h r o u g h o u t is  helping countries reach the required standard, rather than punishing each and every  of on  failure"  ( I C F T U 1997, 25-6). C. The  MAI: In February o f 1998, opposition forces and governments suspicious o f the  of acomprehensive round of M A I  repercussions  investment agreement for key policy areas succeeded in stalling the  negotiations  initiated a m o n g  members  o f the  Organization  first  for  Economic  C o o p e r a t i o n a n d D e v e l o p m e n t ( O E C D ) ( 1 9 9 8 c , 5 ; Globe and Mail, O c t . 1 5 / 9 8 , B l ) .  However,  the defeat o f the M A I project in this c o n t e x t d o e s n o t m e a n that i n v e s t m e n t is n o l o n g e r the p u r v i e w o f multilateral trade negotiations.  within  F a i l u r e at the O E C D level s p a r k e d d i s c u s s i o n o f  the prospect o f relocating investment talks to the W T O ,  amove supported by some  developed  c o u n t r i e s , i n c l u d i n g C a n a d a ( 1 9 9 8 c , 1 - 2 ; 1 9 9 9 b , 3 ; Globe and Mail, O c t . 1 5 / 9 8 , B l ; O c t .  19/98,  B4; Oct. 21/98, A l ; Oct. 22/98, B4).  indeed  r e s u r f a c e d at the W T O  8  Since this initial speculation, investment  in the context o f the n e w General A g r e e m e n t  has  on Trade in  Services  (GATS). W i t h respect to the M A I , the C L C e n d o r s e d a specific set o f l a b o u r developed by the Trade U n i o n A d v i s o r y C o u n c i l ( T U A C ) to the O E C D . o f the S C  recommendations  A l t h o u g h the  is n o t e x p l i c i t l y u s e d i n these p r o p o s a l s , t h e y c o n t a i n k e y features o f the  50  language clause  approach: namely, the addition of provisions to protect labour rights and standards to the text of TIAs: •  The preamble to the MAI - text that T U A C considers to be of some limited legal importance in terms of providing an interpretive context for the broader agreement - should commit governments to protecting, enhancing, and enforcing basic workers' rights as defined in the core conventions of the ILO.  It should be stressed that a commitment to respect workers'  rights does not in any sense mean that wages or standards should be equalized between signatory countries (1997d, 10; T U A C 1996). •  The preamble should also speak to the importance of the existing O E C D Guidelines for Multinational Enterprises, a long-standing set of provisions relating to the responsibilities of 9  multinational corporations to respect labour rights, and to comply with government policies in areas such as taxation. The Guidelines are not legally binding, but as an internationally agreed upon code of conduct for transnational corporations they carry some moral weight. The incorporation of the Guidelines in the M A I would give them more prominence, and would bring some modest amount of balance to a very unbalanced agreement (1997d, 10). •  The text of the MAI should commit member countries to establish what T U A C and the C L C refer to as 'National Contact Points' to implement the above O E C D Guidelines. While the nature of these Contact Points is not entirely clear, the C L C notes that their role would be to promote the Guidelines and to receive and investigate complaints of non-compliance (1997d, 11).  •  The text of the MAI should incorporate a clause that would prohibit governments from lowering or derogating from domestic labour standards, or violating internationally agreed upon core labour rights, to attract foreign investment. subject to dispute settlement (1997d, 11).  51  This clause should be binding and  Although the Congress endorsed T U A C ' s workers' rights recommendations for the M A I , it is important to recognize that the C L C ' s critique of the M A I also extended beyond that of T U A C . In other words, the C L C developed its own proposals regarding the need to shape rules to govern investment that do not yield the kinds of deleterious implications associated with the M A I , and that permit greater consideration of various social concerns. These arguments are in large part premised on the Congress' concerns about what it characterized as the "extreme liberalization agenda" embodied by the M A I (1998a, 9), and the correspondingly "unbalanced" and "flawed" nature of this agreement (1997d, 2). The M A I was unbalanced because it was "designed exclusively to tear down so-called 'barriers' to the international mobility of capital, and [wa]s not concerned with building an international framework which would balance corporate and investor rights with appropriate obligations" (1999d, 2; also 1997d; 1998a). For the C L C , the kinds of obligations in question included the responsibility of investors to observe basic labour rights, respect environmental standards and protective legislation, and invest in national economies in a manner that generates benefits for local populations. The absence of these sorts of counterbalances was indicative of the inadequacy of the "basic premise" around which the M A I was constructed: namely, that "we need rules to restrain governments, not rules to regulate international corporations" (1998a, 2; also 1997e, 1-2; 1998d, 5). To the extent that the M A I proposed to further restrain the state in order to facilitate market activity, the C L C argued that a more adequate investment agreement must begin from "a very different" starting point (1997d, 1; 1998a, 10). What is not clear from C L C literature, however, is whether this new foundation could have been secured by adding certain provisions to the M A I as it was being negotiated in the late 1990s (e.g. through a SC), or whether it required the development of an entirely different approach to the regulation of investment. 52  This lack of clarity around what it means to develop a 'new starting point' for investment regulation leads to some confusion regarding the relationship between the CLC's support for the TUAC proposals and its concern about the values underlying the MAI.  On one hand, the  Congress' endorsement of TUAC's efforts to introduce some protections for the rights of working people into the MAI suggests that the CLC considered it worthwhile to try and change this agreement by making it more adequate from a social (read labour) perspective. Hence the organization's argument that "it is imperative" that the Canadian government "solicit wide input to determine the impact of this agreement before any final text is concluded, and before it is too late to make substantial changes to the text" (1997d, 11; emphasis added). On the other hand, however, the CLC made statements of the sort that "there is no need for [the MAI]" (1997d, 11), and questioned "why we are continuing with the negotiations rather than starting again from very different premises" (1998a, 2). In other words, the CLC advanced the position that Canadians would be better served by the elimination of the initial MAI text and the development of an entirely new framework for investment regulation. This position was made explicit in interviews with Congress representatives, one of whom insisted that securing the insertion of the TUAC workers' rights provisions into the MAI would have been insufficient to guarantee CLC support for the agreement: ...we should recognize our goal here is to get... included in any MAI agreement workers' rights and some environmental regulations. But we also should recognize that... as labour movements in separate countries, we have some different opinions on this. [0]ur position in Canada - and the Americans' position - was [that] even if we got a good clause in the MAI on workers' rights, that did not necessarily guarantee our support (Interview subject 5, 13-4, emphasis added).  On this view, then, the TUAC proposals were inadequate because they would not have altered the fact that the content of the MAI was fundamentally opposed to the interests of working people, citizens, the environment, and so on (Interview subject 5; CLC 1998a, 9; 1998d, 5). The apparent inconsistencies in CLC statements concerning the appropriate starting point  53  for the construction of a new set of rules to govern international investment leads to confusion over what kinds of changes to the current trade and investment regime would follow from the negotiation and implementation of a SC. Is the SC a set of provisions that will be added to existing agreements in order to mitigate the narrow economic orientation that currently predominates in the regulation of trade and investment? Or is the clause a measure the spirit of which demands a substantial re-negotiation of TIAs as they are currently understood? One commentator external to the CLC summarizes this lack of clarity in the Congress' understanding of what a SC would require as follows: ...what is not ever clear is whether the social clause is something that simply is added on to an already existing trade agreement that has other components that work against labour built into it or whether or not you call for some radical surgery in those trade agreements so as to take out, or to nullify, the components that are directly aimed at, or end up having such a detrimental effect on, any kind of social clause (Interview subject 7, 2).  D. The FTAA: Regional trade agreements like the NAFTA and MERCOSUR  10  have provided the  blueprint for the expansion offreetrade and investment throughout the hemisphere - a prospect currently being advanced through the FTAA initiative. As a relatively new agreement, CLC commentary on the FTAA benefits from the knowledge and experience that the organization gained through activism around the CUFTA, the NAFTA, and the MAI. However, the newness of the FTAA also means that there are fewer organizational analyses of this agreement to examine. Correspondingly, my evaluation of the FTAA is primarily derived from a 1999 brief submitted by the Congress to the Sub-Committee on Trade and Trade Disputes of the Standing Committee on Foreign Affairs and International Relations (1999d). In the 1999 brief, the CLC writes that its first recommendation with respect to the FTAA - what the organization characterizes as its "major concern" - is to ensure that this agreement includes:  54  ...an enforceable mechanism to prevent countriesfromdepressing wages and working conditions as a means of improving their competitive trade advantage. The trade agreement must specify that its members adhere to a set of fundamental labour principles at work (prohibition of child and forced labour,freedomof association, the right to organize and collective bargaining and the principle of no discrimination in employment), it must include an enforceable mechanism which involves the ILO and contains remedies for states or corporations that do not comply (1999d, 17).  Although the CLC does not actually use the language of the SC in describing these provisions, they are consistent with other expressions of the organization's vision of a SC, as well as with the specific proposal for a WTO SC that has been endorsed by the Congress. The CLC defends the insertion of labour provisions in the FTAA on the grounds that such measures are necessary to ensure that liberalized trade does not "promote downward harmonization by encouraging 'social dumping'" (12).  In other words, a common floor of  workers' rights comparable to the common floor of rights that signatories would be bound to observe with respect to subsidies, market access, or business facilitation, would help to prevent countries from improving their competitive advantage by depressing wages and working conditions. As the competent body with respect to labour rights, the CLC maintains that the ILO can play an important role "in setting, promoting and supervising compliance with core labour standards" and providing "technical assistance to governments for this purpose" (12).  Yet  insofar as the ILO lacks any ability to enforce countries' commitments to uphold core labour rights, an external enforcement mechanism - one established through the FTAA - is necessary. The operation of this mechanism would not result in any undue infringement of national sovereignty since "[g]overnments should be willing to accept certain obligations with regards to internationally recognized core labour rights in exchange for the market access they seek through the FTAA" (1999d, 12). In addition to calling for the development of SC provisions to protect labour rights within the FTAA, the CLC calls for several other labour-related measures.  For example, the  organization recommends: the establishment of a Labour Forum and a Working Group on  55  Social/Labour Issues with the same status as busmess-dortiinated bodies; the identification of jobs and employment as urgent priorities to be accompanied by mechanisms addressing inequality; the granting of an advisory role to the ILO within trade negotiations; and the adoption of measures to guarantee the participation of labour and other sectors of civil society in FTAA negotiations. Unfortunately, it is not explicitly stated whether these are measures that the CLC considers necessary in addition to the recommendations included in the above SC proposal, or whether they are simply part of an extended SC vision. When read together with other aspects of the 1999 brief, however, it may be that the CLC is developing a broader strategic vision than that reflected in earlier discussions of the SC. That is, the organization may be moving beyond the notion that a SC defined in terms of core labour rights is the primary means through which to balance the narrowly economic provisions of TIAs with broader social considerations. This is perhaps most visibly reflected in the Congress' recognition of the role that broad-based national, regional, and international coalitions are playing in the development of an agenda for resistance to TIAs. The CLC's analysis of the FTAA makes more explicit reference to the organization's engagement in international coalition work with both labour affiliates and "civil society actors and social movements" than many earlier texts (1999d, 3).  11  In the 1999 brief, the organization  describes how efforts to forge ties across national boundaries have prompted the formation of a Hemispheric Social Alliance (HSA) in the Americas: "a multisectoral, cross-border grouping of unions, environmentalists, women's, human rights, and development groups" (1999d, 3; Common Frontiers 1999). In addition, the CLC points to its sponsorship of the 'People's Summit of the Americas', a research and activist network that cooperatively produced and published the Alternatives for the Americas text, perhaps the most comprehensive attempt to date to develop a broad-based, alternative platform for fair trade in the Americas. Finally, the brief 12  56  acknowledges the extensive participation of the CLC in the activities of the Interamerican Regional Workers Organization (ORIT), a regional body of the ICFTU in the Americas that has spearheaded efforts to secure a place for labour at the FTAA negotiating table. The CLC is arguably being pushed away from a relatively narrow, labour rights interpretation of the SC and towards a somewhat broader strategic outlook at least in part as a result of the direction taken by coalitions among North, South, and Central American organizations.  Consider, for example, the fact that debate between labour and social  organizations regarding appropriate responses to the FTAA initiative has been resolved in favour of the development of strategies that address a more comprehensive set of social concerns than just the core labour rights contained in SC proposals. This is reflected in the fact that the prevailing position on a social dimension for the hemispheric agreement is that it encompasses "political, social and cultural issues such as political participation, economic justice, the environment, health, education, housing, social security, conditions in the informal sector, ethnicity, gender and child labour issues" (Common Frontiers 1996, 32).  With respect to  MERCOSUR as well, it is argued that "a broad range of social rights [should be addressed], thus creating a basis to link a wide spectrum of people and social rights, beyond the labour unions" (Common Frontiers 1996, 35).  Disagreement regarding the breadth of the Charter of  Fundamental Rights of the MERCOSUR has accordingly been resolved to permit the agreement to extend beyond labour rights to include those basic individual and collective rights that belong 13  to all citizens. While coalition activities may be helping to push the CLC towards the view that action is needed around more than the labour rights aspect of the social dimension of trade, these developments have certainly not eclipsed the CLC's support for the adoption of a SC protecting core labour rights. Rather, organizational comments on the 'social' dimension of trade remain in 57  large part indexed to labour issues. Consider, for example, the Congress' suggestion that the "building blocks" for a FTAA social dimension are the NAFTA labour side agreement and the MERCOSUR Labour and Social Declaration. On one hand, the organization is proposing to look to an exclusively labour oriented side deal the content and structure of which have already been rejected as inadequate even from the standpoint of developing a SC. On the other hand, the CLC's interpretation of the MERCOSUR declaration is that its components "need to be reviewed, evaluated, and strengthened, taking the best practices of each model in order to build a 'social dimension' that is based on core workers' rights, is enforceable and includes remedies for non-compliance" (1999d, 14; emphasis added).  This description of what is involved in  constructing a 'social' dimension for the proposed hemispheric agreement explicitly returns to the language of original, labour oriented SC proposals. The CLC's social clause proposal As the above discussion illustrates, a core set of recommendations continually reemerges in CLC literature on the SC. For my purposes in the remainder of this thesis, it is these recommendations which constitute the essence of the Congress' clause strategy. First, all parties to existing and proposed TIAs will be obliged to respect a minimum set of core labour rights in order to gain access to the economic privileges created through the agreement(s) in question. Second, these rights are to be drawn from seven ILO conventions addressing the rights to organize and bargain collectively, the prohibition of forced and child labour, and the prevention of discrimination in employment. Third, the responsibilities created by combining these core conventions in a trade-linked SC will be effectively enforced through dispute procedures and remedies written into the provisions of the TIAs themselves. Unless otherwise noted, it is the proposal constructed by these recommendations to which I am referring in all subsequent discussion of the SC.  58  //. QUERYING THE SOCIAL CLAUSE: STRATEGIC SHIFTS, QUESTIONABLE COMMITMENTS The CLC's decision to use the SC as the leading edge of campaigns to cultivate respect for the social dimension of trade has given rise to the view that the clause strategy is the primary conduit through which the Congress seeks to implement an alternative, more balanced vision of integration. In other words, despite the CLC's broader vision of the issues associated with the social dimension, organizational strategizing around trade and investment liberalization has to some extent come to be identified with the clause proposal.  This does not mean that the  organization rejects all other strategies, or that it is committed to the view that the SC is independently adequate as a mode of resistance. But as one commentator writes, irrespective of any concerns or limitations of the SC approach, "the fact remains that the CLC supports social clause strategies with regards to trade agreements" (Interview subject 7, 2). The CLC's commitment to the SC rests on two important assumptions about the way in which this strategy operates.  On one hand, the decision to promote a SC implies that the  Congress believes that progress in securing recognition for the social dimension of trade can be achieved by working with trade decision-makers to modify the text of TIAs. The precondition for success with the SC strategy is access to the decision-making bodies before which to present proposed text, and ultimately secure its implementation and enforcement through established institutional channels. On the other hand, the pursuit of a SC implies that the goal of developing a more adequate and balanced model of integration can be advanced by securing protections for only workers' rights. As outlined above, the SC proposals of the labour movement recommend the addition of a clause that protects workers' rights despite concern with the erosion of protections in other areas, for example, environmental or health regulation. Among other things, these two assumptions have left the CLC vulnerable to the criticism  59  that it has permitted a 'shift' in strategizing.  14  On this view, the organization has moved away  from strategies aimed at securing a relatively complete rejection of the current model of liberalization and the values that inform it, and towards a SC approach that seeks to work with existing agreements in order to mitigate their effects on working people.  15  The important  corollary of this accusation is that the second, SC option represents a less desirable strategic stance for an organization that is (at least ostensibly) committed to resisting TIAs and the neoliberal priorities on which they are premised. The motivation for this criticism of the CLC flowsfromtwo concerns. First is the notion that strategies like the SC that attempt to improve the trade systemfromwithin will actually fail to yield the desired results. For the CLC, this means that the SC will not yield meaningful and lasting protections for workers' rights even if it is successfully adopted. The second concern is the more theoretical argument that strategies like the SC that purport to modify the trade and investment regimefromwithin will actually serve to reinforce the very system they are intended to challenge. In other words, workingfromwithin the trade regime is tantamount to implicitly supporting this regime regardless of the ultimate goal of, or motivation behind, this work.  ENDNOTES  Unless otherwise noted, all parenthetical citations in this Chapter refer to literature produced by the CLC. A complete list of these sources in chronological order can be found in the appendix. In addition to the side deal on labour issues, the NAFTA includes a side deal on the environment. Although Brian Mulroney, Carlos Salinas and George Bush signed a tentative NAFTA deal on December 17, 1992, president-elect Bill Clinton insisted on the addition of side agreements on environmental and labour standards. Talks on this issue began in March of 1993. By June, the Mulroney government had pushed legislation approving the NAFTA through the House of Commons and the Senate even though there was no finalized version of the side deals in place (Watkins 1993,283-4). Dumping occurs when a country sells good internationally at a price lower than the price assigned to the same goods produced locally. Social dumping occurs when this competitive advantage is gained as a result of production costs being lowered through the provision of artificially low wages and social standards. Although these rights comprise the set most commonly associated with SC proposals, the CLC does include the right to equal pay for work of equal value in this list in two places (1997a, 18; 1998b, 2). Negotiated in 1947, the GATT was originally intended to be only a provisional agreement - a prelude to the International Trade Organization (1TO). The ITO, the mandate of which was to oversee the negotiation and administration of a new multilateral and liberal world trading regime, was one of three institutions designed by the US and Britain in 1944 to lay the groundwork for a "co-operative international economic environment" (Howse and 1  2 3  4  5  6  60  Trebilcock 1995, 20). The other two institutions were the International Monetary Fund (IMF), charged with maintaining exchange rate stability and assisting countries facing balance of payment difficulties; and the International Bank for Reconstruction and Development (commonly known as the World Bank), the initial purpose of which was to provide reconstruction capital to the shattered economies of Europe and Japan. Unlike the successfully established IMF and World Bank, the creation of the ITO faltered largely as a result of opposition by a US Congress concerned about the potential for excessive constraints on domestic sovereignty. The interim agreement that was negotiated among some 23 major trading countries - the GATT - in fact became the permanent institutional basis for the multilateral world trade regime, overseeing eight rounds of multilateral negotiations. The first six, concluding with the Kennedy Round in 1967, focussed on the reciprocal negotiation of tariff concessions. The Tokyo Round ending in 1979 addressed both tariff, and for the first time non-tariff, barriers to trade. The most recent Uruguay Round attempted to address such complex issues as the prospect of liberalizing trade in agriculture, the pattern of protectionism in textiles and clothing, international trade in services, trade-related intellectual property issues, and trade-related investment issues (Howse and Trebilcock 1995,21-2). Interestingly, the ICFTU refers to the proposed clause as a workers' rights clause, as opposed to a social clause. While this difference is of no significance in terms of content, it may have some bearing on external perceptions of what the clause can, or is intended to, accomplish. Indeed, according to some commentators, the negotiation of a MAI at the WTO will remedy the supposed weakness of this organization with respect to investment (1997d, 3; 1997e, 1; Globe and Mail, Oct. 15/98, Bl; Oct. 21/98, Al; Oct. 22/98, B4). The OECD Guidelines for Multinational Enterprises are a set of recommendations devised by OECD governments in 1976 to apply to multinational enterprises operating within their territories. As the OECD outlines in a 1998 document: 7  8  9  The guidelines represent O E C D members' expectations with respect to the behaviour and activities of multinational enterprises, taking the form of a code of good business conduct for all enterprises. Their objective is to provide guidance to multinational enterprises by setting standards addressed to those enterprises... Though not legally binding, the Guidelines with the follow-up mechanisms, have proven effective ( O E C D 1998, 7).  MERCOSUR is a regional trade agreement the signatories to which are Argentina, Brazil, Paraguay and Uruguay. This trade block took effect on January 1, 1995 for Argentina and Brazil, and one year later for the two smaller countries. According to Common Frontiers, the process leading up to MERCOSUR "was ruled strictly by the logic of the market. There was no consideration of social effects and no participation by the social sector or representation of other interests" (Common Frontiers 1996, 34). One may point out here that since the CLC was involved in the work of the broad Canadian coalition, the Action Canada Network (ACN), the organization does have experience in working within a coalition environment. While there is no doubt that the CLC was involved to some extent in both the formation of the ACN and in the production subsequent analyses, I would like to sound two notes of caution about this coalition activity. First, the ACN was a national coalition. It did not have an international dimension until the establishment of Common Frontiers, but by this time, the ACN had already begun to "disown the trade issues" and move towards "much more of a domestic agenda" (Interview subject 7, 6). Second, some interview subjects question the CLC's openness to something more than a labour-oriented perspective on early TIAs even within the context of the ACN, and as such, raise doubts about the organization's initial commitment to coalition work. For example, one commentator contends that the CLC was peripheral to the development of the initial broad critiques advanced by the ACN because the Congress tended to focus on the implications offreetrade for manufacturing - something that was already fairly clear and well documented. Had the CLC embraced a broader perspective, it might have developed a better understanding of the concerns of non-labour groups as well as a more adequate grasp of the meaning of provisions like national treatment, expropriation, and so on, for the country as a whole (Interview subject 8, 1). Alternatives for the Americas. Building a People's Hemispheric Agreement. (Ottawa and Toronto: Cana Centre for Policy Alternatives and Common Frontiers, 1999), 94 pp. These rights include: life, liberty, health, education, nutrition, a safe and healthy working environment, a social safety net, freedom of organization, collective bargaining, the right to strike, access to employment, political participation, andfreedomof information (Common Frontiers 1996, 35). This characterization of the status of CLC strategizing was first brought to my attention during a private communication with Marjorie Griffin Cohen on August 12, 1997. The notion of a shift was subsequently referenced in several interviews with key members of the anti-free trade movement in Canada. One interview subject noted that a change in the strategic priorities of the labour movement actually began to occur within the post-CUFTA context: "[A] weakening of resolve to be strongly opposed to the NAFTA" emerged following the ratification of the 10  11  12  13  14  61  CUFTA because some "settling in had taken place - already there was a feeling that we couldn't really stop this, that what we had to do was more accommodate to it" (Interview subject 7, 2). Another subject characterized the SC strategy as a more lenient position, arguing that the CLC's support for this approach was motivated by the belief that, once ratified, TIAs form theframeworkwithin which organizations are obliged to work (Interview subject 1,  1).  In describing this argument in terms of the CLC's (alleged) move away the rejection of TIAs and towards the modification of these agreements, I do not mean to imply that these are the only two strategic stances available to organizations involved in activism around trade and investment liberalization. The options of rejection and modification are better understood as points along a broad continuum of available strategic possibilities. I am indebted to Marjorie Griffin Cohen for this clarification of the accusation that the position of the CLC has shifted. 15  62  CHAPTER THREE  Working from Within: Legitimation, Transformation, or Subversion? Generally two competing possibilities for action are presented. On the one side are the purists: this group opposedfreetrade initially and, because of the logic of the argument against it, confines its approach to a continued opposition to all new trade agreements and the abolition of those that exist. The other side, affectionately known as the 'sell-outs' by the purists (I'll call them the revisionists), are those who see the most promising political route as that which establishes strong and meaningful social, labour and green clauses in the trade agreements (Cohen 1997b, 1). You'll only change [these economic arrangements] by mobilizing. But you've got to have dialogue as well as your mobilizing... You've got to have people building grass roots movements and putting political pressure on... you've got to be in there arguing the point of view. Otherwise you're no place (Interview subject 5, 16).  /. WORKING FROM WITHIN: FOUR OBJECTIONS TO THE UTILITY OF THE SOCIAL CLA USE STRA TEGY The charge that the SC represents a shift towards a weaker strategic stance flows from four concerns. The first claims that the clause approach will prove ineffective because it is unlikely that countries will agree to adopt binding and meaningful provisions addressing workers' rights. The second argues that, even if a SC is implemented, the nature of current trade structures ensures that this clause will not generate the positive results anticipated by proponents. The third maintains that, in addition to failing to yield positive results, pursuit of a clause within the context of current TIAs will amplify the negative impact of the global trade regime on some countries. The fourth argument articulates the more theoretical concern that pursuit of a SC will actually serve to legitimate the current trade and investment liberalization process. In Chapter three I elucidate these four concerns, acknowledging throughout where SC proponents have offered responses to the objections raised by clause skeptics. As will become apparent in this discussion, the arguments of proponents do not address each of the four criticisms noted above. The fact that my discussion reflects this limitation in current clause debate is not meant to suggest that the position of SC proponents does not necessarily contain resources to develop responses to the remaining concerns. However, it does point to a feature of  63  most SC commentary: namely, a lack of substantive engagement between pro- and anti-SC commentators with respect to evaluating the utility and desirability of pursuing a SC. Although it tends not to be presented as such in the literature, a concern that underlies each of the four objections discussed in this Chapter is the degree to which the SC is limited by the fact that it is located within the trade system that it is ultimately intended to challenge. All four criticisms question the appropriateness and desirability of relying on tools available within existing trade structures to oblige trade bodies to recognize, and adopt measures to protect, labour rights. The first three objections suggest that working within these structures will fail to yield the kinds of outcomes that SC proponents aspire to achieve. The fourth implies that the SC will effectively function to reinforce the current trade and investment regime because working within this regime is tantamount to validating the economic and political values around which it has been constructed. When presented with this underlying concern, representatives of the CLC offer reasons to justify efforts to work within trade and investment institutions to insert social clauses into TIAs. Because these arguments address the strategic issue grounding each of the above objections, they constitute the beginning of a response to the accusation that working within trade structures is inadequate. In the final part of chapter three, I consider how insights from debate over the NAFTA labour side agreementfiirtherhelp to define a model of effective participation in trade structures that does not legitimate what is, at bottom, an inadequate trade regime.  Objection One: It is unlikely that a social clause with binding and meaningful commitments on labour rights will be successfully adopted. The first objection highlights the significant practical problems that some commentators suggest will arise around the implementation of a SC. Leaving aside basic disagreement regarding the desirability of introducing a SC into TIAs, these problems pertain most often to the  64  enforceability of SC commitments.  Some commentators predict that profound political  difficulties will arise if clause proponents intend to establish provisions that carry more than moral weight (Cohen 2000, 205-6; Interview subject 1, 2). To function as binding commitments, labour rights provisions must be contained in more than just interpretive provisions and preambles; they must become part of the actual text of agreements so that they are enforceable with the same discipline as investor's rights.  However, SC advocates have not offered a  1  satisfactory rationale for why they expect governments to choose to implement enforceable commitments on workers' rights when many of these governments continue to violate existing voluntary agreements that attach to the same rights. Critics point to the fact that the rights to be contained in a SC are drawn from widely ratified, but non-binding, ILO Conventions international agreements that many countries fail to uphold on the domestic front. When such blatant non-compliance continues to occur under the auspices of the ILO, it is unclear why SC proponents believe that WTO members would chose to make these commitments binding through more comprehensive (Swenarchuk 1998a, 12).  WTO enforcement  and dispute  settlement mechanisms  For larger, more powerful countries, this concern is particularly  relevant insofar as they may not consider it to be in their best interests to subordinate national objectives to external review (Daoudi and Dajani 1983, 167). As van Liemt asks: "Why would a big country want to subject such an important part of its trade policy, with potentially heavy political overtones, to an international body whose actions will inevitably be guided by political considerations of its own?" (van Liemt 1989, 444). Political will versus political reality: the allies of the SC Although it is true that SC proponents have not adequately engaged with the question of whether there is sufficient political will to support the adoption of a binding SC, the above objection does not take into account the current status of clause campaigns. In addition to the 65  defenses of the SC offered by (parts of) the Canadian and international labour movements, the governments of key states - most notably, the US, the European Union, and Canada - favour the prospect of establishing a trade-labour link at the WTO (Department of Foreign Affairs and International Trade 1999; EU 1999; Khor 1994; 1999f; Leary 1996, 178; US government 1999; 2000).  At the 1999 WTO Ministerial meeting in Seattle, American trade representatives  introduced a proposal to establish a Working Group on Trade and Labour rights despite an already full negotiating agenda and vociferous opposition from many developing countries (John 1996; Khor 1999a; 1999b; 1999f; Raghaven 1999d; Shiva 1995).  The Canadian federal  government has explicitly supported this proposal, citing the need for initiatives that "address labour and other social policy issues within the context of globalization and trade liberalization" (DFAIT 1999). Support for the SC on the part of countries like Canada and the US suggests that the political will to implement such an initiative cannot be measured only in terms of degree of compliance with existing voluntary commitments around labour rights. The notoriously poor record of the United States in terms of the ratification of core ILO Conventions has not prevented it, for whatever reasons, from championing the development of a SC (Haworth and Hughes 1997, 187; Leary 1996, 187-8). Opponents of the SC offer a different interpretation of the American government's decision to support the negotiation of a trade-labour link at the WTO. On this view, the US proposal is not considered indicative of some renewed beneficent interest in protecting the rights of working people. Rather, critics argue that it is more likely that American support for the clause is forthcoming because the US expects that SC discipline could be used to protect its domestic industries from the exports of developing states that have fewer resources to initiate and respond to complaints.  2  Insofar as Northern countries' support for the SC is conditional  upon their remaining insulated from its requirements, critics conclude that it remains unlikely 66  that the clause will contain provisions capable of enforcing generalized and lasting improvements in conditions of work. Objection Two: The nature and operation of TIAs mitigate against the likelihood that a social clause will yield the positive results predicted by its proponents.  The second objection to the SC questions whether clause proponents have accurately evaluated the potential for existing trade machinery to protect and advance labour rights (or other social interests).  Critics advancing this argument insist that it is unlikely that the SC will  generate the kinds of positive effects proponents anticipate because the values and processes around which TIAs have been constructed work against the achievement of such outcomes. In the following sections, I outline two different expressions of this argument. The first articulation of this objection indicts the SC strategy for ignoring the (alleged) incompatibility between TIAs and social provisions.  On this view, there is something  questionable about the prospect of relying on TIAs as the conduits for introducing social concerns to the trade regime given that these agreements function as primarily liberalizing instruments. As Cohen writes, "the new international rules of trade... are designed expressly to create markets - not to control them" (Cohen 1997b, 4; 1999, 11). If the goal of TIAs is market expansion, SC advocates overestimate the capacity of the clause to oblige these agreements to/ prioritize social goals over economic interests.  In other words, it is unlikely that trade  instruments will prove capable of adequately respecting or enforcing provisions designed to place limiting conditions on the very outcomes that TIAs are meant to achieve:  namely,  unfettered market growth. As such, the effectiveness of even a successfully adopted SC will be constrained by the fact that the market promoting provisions central to TIAs will always mitigate against positive efforts to protect workers' rights (or other social interests) (Interview subject 1, 2-3).  67  Michelle Swenarchuk offers a second formulation of the objection that the potential of the SC is limited by the nature and operation of existing TIAs (1998a). Swenarchuk argues that past experience with environmental clauses in TIAs offers a useful point of reference for evaluating the likelihood of a SC yielding significant positive effects with respect to labour rights. Unfortunately, an examination of the WTO's treatment of environmental and health matters to date does not indicate reason for optimism. Although the NAFTA, GATT, and the WTO permit countries to exempt from trade discipline standards deemed necessary for the protection of 'human, animal or plant life or health' and/or the 'conservation of exhaustible resources', dispute panels have decided against domestic environmental or health standards in every case on the grounds that these standards are incompatible with the provisions of the relevant TIA (Swenarchuk 1998a, 18; 1999). The WTO's unwillingness to use already available exceptions to uphold environmental or health standards should give SC advocates reason for caution when assuming that the negotiation and implementation of a new SC will result in greater respect for workers' rights. Experience with the NAFTA labour side agreement further reinforces this conclusion insofar as relatively few complaints have been initiated, while the majority of those undertaken have failed to move beyond the opening stage of ministerial consultations (Cohen 2000, 205; McGrady 1998). The status of multilateral environmental agreements (MEAs) furnishes SC proponents with a further reason for skepticism regarding the anticipated positive impact of a SC. MEAs parallel ILO Conventions in the sense that they represent an international consensus rendered into law, and thus are generally not interpreted to be instruments of unilateralist protectionism (at least among signatory parties). A number of MEAs explicitly mandate the use of trade sanctions for environmental purposes, an enforcement measure that is replicated in many SC proposals. However, disagreement among developed and developing countries concerning the legal options 68  for accommodating such trade restrictions in the WTO regime have dead-locked discussions regarding their application. For Swenarchuk, the fact that WTO members "are not willing to accept trade restrictions already agreed to by international processes in MEAs" makes it "most unlikely that they will agree to accept a labour clause and initiate trade restrictions to enforce it" (Swenarchuk 1998a, 21). As such, the impasse around MEA enforcement provides an important signal regarding the success of a SC enforceable by trade restrictions:  even if a SC is  successfully adopted, environmental and health precedent suggests that the operation of trade bodies may constrain the application of enforcement measures, thereby undermining the effectiveness of the provisions in question. Objection Three: Within the context of current TIAs, the adoption of a social clause will amplify the negative effects of the trade and investment system for some countries. Unlike objections one and two, which question the likelihood of successfully securing enforceable commitments on labour rights, the third objection takes issue with the role that the enforcement mechanisms common to existing and proposed TIAs would play within the context of a SC. The establishment of a formal trade-labour link would open the door for the application of TIA dispute settlement and enforcement procedures, including sanctions, to labour issues (Khor 1999b, 2-3).  Some commentators believe that such an enforcement regime is both  essential and progressive, especially if sanctions are to be used as only a last resort (Common Frontiers 1996, 32; Hart 1996, 10; ICFTU 1997). However, others question the legitimacy of using sanctions to enforce labour rights given that it is unclear what the implications would be for already disadvantaged countries in the South, and the working people within these states (Raghaven 1999d, 7-8).  Skeptics suggest that the application of punitive measures to the  developing world implies that workers' rights are violated as a deliberate tool of oppression, and not that they are one result of persistently low levels of development (Blanchard in Servais 1989,  69  428, Compa 1992, note 45; Elwell 1995, 32-3; Khor 2000, 47). In addition, a sanctions-based enforcement regime may be used to oblige developing countries to open their economies to the goods, services, and businesses of the developed world, putting the South's future development at risk by undermining the growth of domestic capacity (Khor 1999e, 3). Since sanctions are an integral component of TIA enforcement regimes, these commentators conclude that the persuasive techniques of institutions like the ILO or the UN, including the provision of technical assistance and other incentives, could better assist countries to improve their record on workers' rights than TIA-linked labour measures (John 1996, 32; Khor 1994, 19; 1999a, 1-2; Lee 1997, 178;Raghaven 1999d, 7). In response to commentators suspicious of the adoption of a SC enforceable by sanctions, clause proponents question the viability of proposed alternatives to a formal trade-labour link. As noted above, one SC alternative regularly highlighted by clause skeptics is the voluntary compliance regime of the ILO, an organization that has historically been committed to the development, protection, and advancement of the rights of working people. According to some commentators, however, the prospect of leaving labour rights under the auspices of the ILO fails to take into account the changing nature of this institution (Cohen et al; Cohen 2000, 208-9; Swenarchuk 1998a, 12-7).  Since the late 1980s, there has been an observable agenda of  deregulation and regressive re-regulation at the ILO. As Marjorie Cohen remarks: "Employer representatives at the ILO have adopted the international corporate agenda of deregulation and have attempted to substitute the existing enforceable standards that advance workers' rights with new standards that promote corporate competitiveness and self-regulation" (Cohen 2000, 208). At the very least, these trends suggest that commentators concerned about the rights of working people should no longer simply assume that the ILO will operate as a positive, or at least a neutral, force in the international labour rights arena. 70  Beyond concerns about the neutrality of the ILO, proponents of the SC question the adequacy of a labour rights regime based on only voluntary compliance. Many commentators argue that one reason why strong enforcement measures are necessary is to remedy the shortfalls of the ILO and other UN institutions that rely on moral suasion, publicity, and the provision of positive incentives and/or assistance to secure compliance with labour provisions (CLC 1996a, 69; 1999b, 8-9; 1999d, 12; ICFTU 1997, 1998; ORIT 1998a). As ORIT observes, "[g]iven that many countries have already ratified the ILO Conventions... and yet are still violating them, it is important to have an enforcement mechanism for the social clause" (ORIT 1998a, 10). To be clear, labour organizations like the ICFTU and the CLC do point out that the development of effective enforcement procedures is a process that should involve both the ILO and the WTO. Indeed, the ICFTU has emphasized the need for "determined action by the ILO to strengthen its means for assuring full observance of core labour standards" in order to "provide the ILO with enhanced authority to contribute to improving basic workers' rights in all countries" (ICFTU 1998, 3). Despite this acknowledgement of the contribution of the ILO, opposition to the adoption of a sanctions-based SC remains unacceptable because it implies that the existing, largely voluntary labour rights regime "is adequate and, indeed, is the best that can be hoped for, given the continued pervasiveness of poverty in developing countries" (Lee 1997, 178).  Not only is this a dangerous admission given the poor record of many countries on  workers rights, but it disregards the fact that the SC can be defended by reference to considerations of both economic and human fairness, as will be discussed in greater detail in Chapter four. SC supporters can also argue against reliance on a voluntary labour rights regime by pointing to the greater degree of success in implementing and enforcing obligations under the NAFTA, the GATT and the WTO relative to commitments undertaken through the ratification of ILO conventions. This 'progress' made under TIAs has inclined activists to look to the trade 71  system as a potential avenue for effectively addressing labour, and other social, concerns (Hart 1996, 4). Objection Four: The social clause strategy serves to legitimate the current trade and investment system. 3  Having considered arguments that criticize the SC strategy on the grounds that the clause is incapable of achieving the positive outcomes that its proponents predict, some clause skeptics suggest a different rationale for jettisoning the SC as a viable strategy of resistance: namely, that it implicitly legitimates the current trade and investment regime. This argument is grounded on two complaints about the way in which the SC strategy proposes to develop a more balanced form of integration.  To begin with, critics maintain that the SC approach presupposes  acceptance of the primarily liberalizing and market-oriented principles that are the essence of TIAs. The SC does not challenge the economic and political values driving the expansion of liberalized trade and investment, but leaves key provisions of TIAs intact to continue to cause the very social problems that the SC is intended to address. On this view, failing to challenge the economic and political framework at the heart of TIAs is tantamount to sanctioning their continued existence. As one organization writes, promoting a SC "means, implicitly, accepting the overall strategy of international capital and institutions such as the International Monetary Fund and the World Bank to integrate national economies into the world system, when one should be opposing this strategy" (Common Frontiers 1996, 18). The idea that failing to challenge values central to TIAs is comparable to accepting these values appears to be grounded on the view that the SC is actually held out by its proponents as a remedy for TIAs. In other words, the message inherent in the clause campaign is that the addition of a SC to TIAs is a way to make these agreements acceptable. In turn, the prospect of 4  acceptable TIAs is (presumably) unwelcome because it would suggest that all that is problematic  72  about these agreements is the absence of whatever social protections are to be included in the SC. The implications of this position are twofold. On one hand, it suggests that striving to modify the text of TIAs is strategically sufficient on its own even though this approach does not challenge the market-promoting provisions that militate against the social provisions contained in the attached clause. On the other hand, the prospect that a SC will render TIAs acceptable implies that opposition to these agreements could justifiably cease following the implementation of such a clause.  As such, critics insist that  organizations defending the SC are advancing a strategy limited from the outset to making "fundamentally bad agreement [s] marginally better" when what is needed are efforts to eliminate (at least the most problematic provisions of) these agreements altogether (Common Frontiers 1996, 38). In addition to failing to challenge the economic and political values around which TIAs have been constructed, support for the SC strategy also presupposes that it is useful and desirable to work within existing trade structures and institutions to forge recognition of the social dimension of trade.  For critics of the SC, however, the decision to participate in trade  negotiation and decision-making processes implicitly legitimates these processes, and correspondingly, undermines one's ability to challenge them completely. "Once you become part of a process, then you make the process legitimate and it's hard to attack it completely... you begin to play by certain rules because you're trying to influence how it comes out rather than trying to stop it" (Interview subject 3, 9). In other words, by relying on a strategy that calls for remedies to the social problems resultingfromtrade and investment liberalization to become part of the primary instruments of this liberalization, SC advocates are "accepting], if not supporting], economic integration" (Cohen 2000, 204). It is at best inconsistent, and at worst 5  incoherent, for SC proponents to advocate a strategy that implies support for the current form of 73  integration, particularly at a time when the neoliberal values enshrined in TIAs are expanding throughout the hemisphere and around the world. The argument that the SC performs a legitimating function with respect to the current model of trade and investment liberalization has resulted in the indictment that the CLC has 'sold out' on its opposition to the very trade regime it (ostensibly) intends to challenge. Characterizing the decision to turn towards the SC as a strategic selling out implies from the outset that there can be no value in pursuing a strategy like the SC that seeks to gain access to trade institutions as a precondition for modifying the terms of TIAs. By definition, approaches that purport to 'work from within' are inappropriate to the goal of devising an alternative more balanced model of integration, and dangerous in light of their potential to reinforce existing trade structures. II. A PLACE AT THE TABLE: PUTTING THE OBLIGATIONS OF A COLLECTIVE BARGAINING LEGACY INTO PRACTICE As suggested in the introduction, the argument that strategies that workfromwithin the system are inadequate unifies each of the four criticisms discussed above. Whereas the final objection claims that reliance on the tools available within existing trade structures functions to legitimate these structures, objections one through three allege that striving to improve the systemfromwithin by attaching a SC to TIAs will prove ineffective because these agreements and the international trade order of which they are a part are simply not designed to permit meaningful action around social interests.  Questionable support for the establishment of  enforceable labour commitments, the narrow economic interests driving TIAs, and the potential for negative repercussions as a result of the use of sanctions, all point to the fact that working within current trade structures will not sufficiently alter the liberalization process to yield meaningful changefromthe perspective of labour rights. When presented with this overarching concern about the utility of their SC strategy, however, representatives of the CLC identified two  74  reasons why their responsibilities as activists commit the organization to hold onto the prospect of participating in trade negotiations and decision-making processes whenever possible. First, the obligations imposed by the collective bargaining legacy of the labour movement; and second, the need for a pragmatic, two-track approach to resisting the dominant neoliberal trade and investment agenda. According to CLC representatives, the argument that the SC strategy is inadequate because it operates from within the current trade and investment regime is advanced by commentators who misunderstand the culture of the labour movement, the centrepiece of which is the collective bargaining tradition (Interview subject 5, 15; Interview subject 10, 16). When evaluated in light of the commitments that flow from this tradition, the SC emerges as an appropriate and pragmatic strategy for labour organizations to employ. The collective bargaining tradition commits labour to the notion that improvements in conditions of work, wages, and other issues will be won as a result of negotiation with those who have the power to determine these conditions. While negotiations with individual employers concern the provisions of employment contracts, severance packages, and so on, the same premise applies in the context of resistance to trade-led integration. Through support for SC proposals, the CLC seeks to gain access to those trade instruments and representatives responsible for making decisions about trade, and capable of introducing provisions to protect the rights of working people into TIAs. Achieving this goal requires labour, social, and activist organizations to take part in decision-making processes given the expectation that little will be accomplished by "knocking on the door outside... you've got to be in there arguing the point of view" (Interview subject 5, 15).  In other words, pursuit of a strategy of engagement with  decision-makers is not simply an arbitrary choice. Proponents of the SC believe that labour organizations have a responsibility to participate in negotiation processes wherever and 75  whenever possible, and that to do so is a practical course of action given the lack of access that labour, social, and activist organizations generally have to trade processes. As one representative notes:  Trade agreements, economic arrangements, impact directly on workers. And we don't only have a right, we've got a goddamn obligation to be there to talk about it and argue about it. We ca out... we should do both as we do with every strike. We strike and we campaign against the corporation... but we're also at the table trying to find a solution. On these economic arrangements... you'll never change them by saying 'please'. You'll only change them by mobilizing. But you've got to have dialogue as well as your mobilizing - you can't have mobilized for nothing (Interview subject 5, 16; emphasis added).  This notion of obligatory participation in negotiations is central to defending the mode of strategic engagement put at issue by concerns about the utility of resisting the current trade and investment agenda by working within the institutions that establish this agenda. For the CLC, it is a decision to not push forward with measures like the SC that would amount to a forfeiture of genuine opportunities for resistance, not the use of this strategy in whatever capacity and to whatever degree available to the organization. Despite this affirmation of the use of the SC, CLC representatives do qualify their support for the clause strategy in two ways. First, it is acknowledged that the SC alone is an insufficient approach to developing an alternative, more balanced model of integration. Interviews with Congress representatives reveal that the organization's strategizing around trade and investment liberalization is actually grounded on what one representative calls a 'two-track' position: So you recognize the agreement is in place - there's not many governments that are going to rip it up now. So the question is how do you carry on a two-track [position]... How do you carry on some access to real dialogue about what's going on with the trade agreements... and access to changing the agreements to make them more part of a social dimension (Interview subject 5, 6; emphasis added).  In order to implement this two-track approach, CLC strategizing has two distinct branches: one focuses on the SC, while the other prioritizes efforts to sustain a broader critique of the dominant liberalization agenda.  The first branch is committed to seeking immediate gains for those  76  working people represented by the CLC and its affiliated unions. The second is premised on the CLC's affirmation of the fundamental inadequacy of the whole model of trade and investment liberalization around which TIAs have been constructed, and is accordingly committed to ultimately motivating a rejection of this model. Within an international trade system that offers 6  few avenues to confront trade bureaucrats, and an economic and political climate that elevates the pursuit of economic growth over the advancement of social and economic justice, the CLC believes that both branches are necessary to sustaining a useful platform of resistance (Interview subject 5, 6). The second way in which the CLC qualifies its support for the SC strategy is by acknowledging that the obligation incumbent upon labour organizations to participate in decision-making processes does not mean that these organizations believe that negotiations will always yield satisfactory results.  At the heart of the collective bargaining tradition is the  assumption that success will never be fully achieved. It is inevitable that some requests will initially be rejected by those in power, but only to resurface in subsequent negotiations: "you get this here and you build on it in the next contract" (Interview subject 10, 16).  Securing  recognition of the social dimension of trade is a similarly long-term process, only the beginning of which is signalled by the successful adoption of a SC. As one member of the CLC remarks: [F]or us to get a perfect workers' right clause in the WTO, in NAFTA, doesn't mean it's over. It's like bargaining a collective agreement. You get something in the collective agreement you want to achieve - it never means that solves everything. It's very much a small part, another piece of the puzzle that's very important. It gives you another piece to work for; it gives you something more to campaign around; it gives you some more access. So there's nothing that makes a total victory here (Interview subject 5,21; see also Interview subject 10, 16).  This acknowledgement of the limited victory that will result from the successful implementation of a SC is consistent with occasional, cautionary statements in CLC literature about the anticipated impact of the clause. For example, the Congress writes that while the SC proposal: ... is a clear and potentially useful response to some of the more perverse forms of competitive behaviour that firms and countries adopt... it does not respond to all of the difficulty that trade and 77  investment liberalization creates for working people... [0]nly the more extreme forms of perverse behaviour... would be directly limited by the proposed social clause (CLC 1997a, 18). 7  The CLC's acknowledgement of the fact that the SC will not significantly affect developed countries that regularly violate workers' rights offers further support for the argument that the Q  implementation of this clause would amount to "a very modest victory" ( CLC 1998b, 2). Accordingly, the organization allows that the clause "is only a small part of the answer to the growing problems of the global economy" (CLC 1999b, 9; see also Interview subject 5, 21).  9  Although the SC may not offer a comprehensive solution to all of the problems associated with trade-led integration, the CLC does not consider this sufficient reason to reject the use of this strategy altogether.  Since incremental progress through negotiation is an  accepted component of the collective bargaining model that grounds the CLC's understanding of appropriate resistance, the SC remains viable as an instrument with which to push for access to the bargaining table(s) at which decisions about workers' rights will be made (Interview subject 5, 15-6, 21; Interview subject 10, 16).  This is particularly true when the SC approach is  complemented by an awareness of the need to sustain a broader critique of the current form of integration in order to keep building momentum for efforts to replace this model with an alternative approach. From this perspective, then, the CLC's shift to a SC strategy does not signal a weakening of strategic resolve, but a reinterpretation of the means most appropriate to realize the organization's goal of a more balanced model of liberalization.  Rather than predicating  resistance on the wholesale rejection or re-negotiation of TIAs - a position that risks being dismissed by decision-makers unwilling to countenance 'radical' departures from presently accepted economic and political wisdom - the CLC considers it more useful to push for limited measures (like the SC) that may subsequently be used to pry open trade negotiations to the consideration of social interests. As one CLC representative summarizes, insofar as the political 78  marginalization of the left entails that "grand economic policy alternatives [are] more or less ruled out from the inception", the practice strategizing around such alternatives is "a bit of a luxury" (Interview subject 6, 5). ///.  PRAGMATISM AS A RESOURCE FOR SUBVERSION As a response to the accusation that the SC is a weaker strategic stance, the CLC's  support for the collective bargaining tradition and a two-track approach allows that while the clause may not be sufficient on its own, it can be a valuable and pragmatic starting point for campaigns around labour rights. This is particularly the case given the CLC's obligation to fight for the working people it represents despite the inaccessibility of trade bodies and the suspicion with which the prospect of trade-linked labour standards are viewed by many pro-free trade businesses and governments.  The question that remains, then, is whether this appeal to  pragmatism constitutes an adequate response to the objections that the SC will ultimately prove ineffective, and that it will function to reinforce the current trade system. To address the latter accusation first, the arguments advanced by the CLC do provide reason to believe that it is consistent - and perhaps even appropriate within current circumstances - to seek access to trade processes while at the same time holding onto the ability to label these processes as illegitimate.  If properly implemented, such a multilevel strategic  platform provides an opportunity to directly encourage trade negotiators to rethink existing trade commitments without surrendering the capacity to call for the development of an entirely new framework for liberalization. Granted, such a platform necessarily complicates the process of criticizing the framework within which trade negotiations are taking place.  However, a  multilevel strategy does not preclude the possibility of developing an overarching critique of the trade and investment regime, nor should it be taken to imply that parties who chose to participate in trade processes are any less opposed to the model of integration they are striving to subvert.  79  Organizations that chose to adopt a bifurcated strategic stance may find it more difficult to articulate their strategic vision in terms that clearly account for both the willingness to negotiate and the desire to challenge the system sponsoring these negotiations. In this vein, the CLC could certainly benefit from a more careful integration of its recommendations regarding the SC with its rejection of the problematic model of integration around which TIAs have been constructed to date. Similarly, organizations like the Congress may struggle to implement a twotrack strategic vision in a manner that remains consistent with both the commitment to negotiate and the commitment to challenge the existing trade regime. Indeed, it is precisely this difficulty that has given rise to the accusation that the SC reinforces the existing trade system, since it is not always clear from existing clause commentary how the CLC is acting on both parts of its strategic platform. However, there are steps that the CLC can take to redefine its commitment to the SC to permit forward movement on each aspect of organizational strategy, as will be discussed further in Chapter five. In addition to deflecting the legitimation objection, the CLC's discussion of collective bargaining and two-track strategies contains resources to respond to the criticism that the SC is incapable of realizing the positive outcomes predicted by proponents. The CLC's defense of clause strategies recognizes that concerns regarding the enforceability of SC provisions and the fundamental incompatibility of social goals with existing liberalization commitments point to serious issues that will in all likelihood continue to plague efforts to develop a social framework for trade, including the SC. As such, it is important to acknowledge that the organization's position does not imply that these criticisms should simply be dismissed. At the same time, however, the Congress is committed to the view that the constraints imposed by the current trade system do not predetermine the (in) efficacy of the SC. In other words, the fact that the clause operates within problematic trade structures does not preclude the possibility of positive gains 80  albeit that these gains may represent only partial successes around which further activism is needed. Accordingly, one conclusion that I drawfromCLC strategizing is that there is a need to more broadly and explicitly define what counts as success in resisting TIAs within the current economic and political climate. An effective campaign need not culminate in the undermining of the neoliberal model of liberalization or the abrogation of existing TIAs. Success may also be measured by the achievement of formal recognition for labour rights, or progress with respect to securing greater legitimacy for the social dimension of trade. Whatever degree of success is achieved, however, it is crucial that efforts to use the tools available within the trade system to push for improvements in this system do so in a manner that exposes its fundamental inadequacies. In other words, reinterpreting what counts as an effective campaign is not meant to detractfromthe importance of remaining cognizant of the overarching goal of replacing the current model of integration with a more balanced approach. What it is meant to affirm is the potential value of those limited gains that strategies like the SC can achieve, particularly at a time when the range of strategic options is limited by the delegitimation of redistributive initiatives, the inaccessibility of bodies responsible for organizing the international economic order, and the formal requirements of TIAs. Redefining success: the NAFTA labour side agreement To more clearly explicate the gains that can be achieved by employing a strategic approach that embraces both participation in trade institutions and the elimination or substantial alteration of these institutions, it is instructive to consider debate over the NAFTA labour side agreement. The NAALC is an instrument similar to the SC in that it attempts to introduce labour considerations to TIAs by adding formal provisions on workers' rights to these agreements. Accordingly, comparable issues have arisen with respect to the utility of the side agreement, 81  particularly around the question of whether labour (and other) organizations should participate in NAALC structures and processes, or abstain from such participation given the fundamentally flawed nature of the agreement (Compa 1995; 1996; 1997; Cook et al 1997; Diamond 1996; Levinson 1996; McGrady 1998; Morpaw 1996; Robinson 1995a). Critics of the NAALC argue that the inadequacies of this agreement render it incapable of generating meaningful improvements in the area of labour rights. There are four features of the NAALC to which commentators take particular exception. First, the three-tier structure of the agreement, a format that limits the imposition of fines or loss of benefits to cases addressing only three of the eleven labour rights covered by the NAALC, and only provides consultation as a remedy for violations of key rights like freedom of association and collective bargaining.  10  Second, the requirement that parties to the agreement must enforce only their own domestic labour laws, a stipulation that does not preclude the possibility of national governments choosing to weaken or eliminate these laws in response to competitive pressures. Third, the fact that the side agreement does not specify a minimum set of internationally recognized labour rights. And fourth, the complex nature of the complaint and review processes on which NAALC complainants are forced to rely. In light of these and other weaknesses, skeptics charge that the labour side agreement is unable to fundamentally challenge the anti-social and anti-democratic nature of the NAFTA. And as with the SC, one conclusion drawnfromthis observation is that it would be "a mistake... to dignify and legitimate this fraud by agreeing to participate in it" (Robinson 1995a, 484). In response to the above kinds of concerns, some commentators have sought to defend the NAALC by demonstrating that there is reason to believe that the ratification of this agreement is a significant development from the perspective of efforts to introduce labour considerations into trade.  Some of these defenses are procedural, pointing to use of tiered 82  structures in other international agreements; the practicality of enforcing only domestic laws in light of suspicion over the surrender of sovereignty to supranational institutions;  11  unfeasibility of expecting to arrive at a universal set of minimum labour rights.  and the  Of greater  interest in the current context, however, are arguments that point to the potential of the NAALC to yield positive repercussions irrespective of inadequacies in its structure and content. To begin with, commentators on the NAALC suggest that the agreement is capable of generating beneficial 'sunlight' effects (Compa 1997, 19). As a new forum in which to highlight labour rights violations, the side agreement can shed light on the status of working conditions in all three NAFTA countries, as well as on the (in)action of governments with respect to the enforcement of national labour laws.  In some cases, highlighting enforcement failures may  incite governments to improve their record in the labour arena, or encourage businesses to ameliorate their labour practices.  12  But even if such concrete outcomes are not realized, a  presumption in favour of governmental responsibility to act on labour issues has been created by the NAALC, providing labour organizations and citizens with a foundation from which to demand action. As Robinson observes, "the burden of proof is, in some sense, shifted.  If  governments refuse to challenge blatant failures to enforce labour laws in other NAFTA countries, they now have some explaining to do" (Robinson 1995a, 490). In addition to providing a context in which to expose workers' rights violations, arguments concerning the sunlight effects of the NAALC refer to the expectation that increased international scrutiny of labour issues - and the potential for (negative) publicity that such scrutiny brings - will help to foster greater public awareness of working conditions in North America (Compa 1997, 19; McGrady 1998, 27; Robinson 1995a, 490-1).  13  On this view, one of  the most important roles of the side agreement is to organize and mobilize public opinion. By giving labour rights advocates "an institutional focus for increasing public awareness of what is 83  happening to worker rights in the NAFTA countries" the NAALC can help "to increase public pressure on government to perform better in these areas" (Robinson 1995a, 491). Given that none of the above-described positive effects are conditional on NAALC complaints being resolved in a manner favourable to labour, the prospect that critics are correct in predicting that the NAALC is incapable of yielding genuine improvements on labour rights is an insufficient reason to reject the use of this agreement.  In essence, the side agreement is  capable of generating positive effects by virtue of its very existence as a formal instrument addressing workers' rights in the context of a TIA.  Some commentators further argue that  decisions that are explicitly contrary to the interests of labour can help highlight the very inadequacies with which NAALC critics are concerned (Robinson in McGrady 1998, 28), and thereby mobilize the public around the need to create an alternative forum for consideration of labour issues (Robinson 1995a, 491).  In other words, negative outcomes may further incite  public indignation regarding a liberalization framework unable to ensure that the interests of working people are respected and advanced. In addition to its positive sunshine effects, some commentators suggest that the NAALC can function as a tool with which to expose the inadequacies of the current model of integration. By formally linking trade to the review of labour rights, the side agreement helps to legitimize not only the notion that trade does impact on conditions of work, but also that these impacts should be considered as part of any evaluation of the operation of TIAs. "[B]y its very existence, [the NAALC] embodies the principle that what happens to labour rights and standards in the countries with which Canada trades is an important and legitimate concern of Canadians" (Robinson 1995a, 491). Since the notion that labour rights are appropriately implicated in trade challenges the assumption that liberalization should be guided by only a narrow set of economic considerations, the NAALC "provides a forum for the articulation and legitimization of 84  principles antithetical to the neo-liberal mode of international economic integration. It can be used to attack the hegemony of the claim that there is no reasonable alternative to the neo-liberal model" (Robinson in McGrady 1998, 28). From this perspective, the fact that the content of the NAALC is inadequate does not undermine the agreement's potential to contribute to the replacement of the current trade order with a more balanced approach. Or in other words, it is not that the content of this particular agreement should become part of an alternative to trade-led integration, but rather that the agreement itself affirms the potential for such an alternative, thereby helping to build political and public support for its realization (Robinson 1995a, 491). Finally, the fact that the NAALC invites labour movements to participate in the protection of labour rights and standards within NAFTA signatory states indicates that the side agreement embodies the principle of international labour solidarity (Compa 1996, 14; Robinson 1995a, 490). The capacity of the agreement to promote the spirit and the practice of cooperation among Canadian, American, and Mexican organizations is not only symbolically important in terms of building tri-national capacity for resistance; it has also proven to have significant practical repercussions.  The NAALC creates opportunities for participation in seminars,  conferences, and workshops, as well as permitting formal cooperation on complaints concerning labour rights violations. Hence the fact that thefirstseven NAALC cases were independently or jointly submitted by organizations in one country on behalf of counterparts in another.  14  As the above discussion makes clear, many commentators seeking to highlight the positive potential of the NAALC do not do so by attempting to refute negative assessments of the content and structure of this agreement. Their goal is instead to determine whether the NAALC can yield beneficial effects despite these overarching weaknesses.  Since these NAALC  supporters recognize that the side agreement is inherently flawed, arguments outlining the potential for positive outcomes are not based on the assumption that this format for incorporating 85  workers' rights into TIAs is adequate, or that it should be replicated in subsequent agreements.  15  However, the fact that the NAALC is unacceptable as a template also does not mean that labour activists should risk permitting any backsliding from NAALC's minimal labour commitments by refusing to participate in the side agreement. Non-participation may serve to provide businesses and governments with an excuse for inaction. For without the input of working people, NAALC institutions will operate on the basis of the (limited and potentially regressive) input of the only two remaining players: employers and governments. To the degree that non-participation risks yielding deleterious outcomes, activists do not seem to have a choice about working within the NAALC framework. Debate over the indexing of labour rights to trade will continue regardless of opposition to the entire trade order or criticisms of the adequacy of particular instruments within this order. This recognition does not mean that those concerned to replace the neoliberal model of integration must permit the NAALC to remain the only, or even the primary, approach to promoting an alternative form of integration. Failing to point out that the side agreement is simply one possible measure - and a limited one at that - would be a huge loss for social forces. But it does mean that the NAALC may be one instrument with which to push for the development of, or at least recognition of the need for, a different and more adequate approach to the social dimension of trade. What is key in discussions of the NAALC, then, is the prospect that the agreement contains the seeds of its own destruction, and the destruction of the dominant understanding of liberalization within which it is embedded. To the extent that the NAALC can be exploited to advance these ends, it is worthwhile to participate in the complaint and cooperative processes created by the agreement. However, the qualification that I would like to add to this commentary is that the potential to undermine existing trade and investment structures is the only legitimate end that can be advanced by working with the NAALC. As one commentator writes, "the only 86  valid strategy for participating in labour and environmental side agreements is with strategies that are designed to unmask and disclose the hypocrisy of those agreements" (Interview subject 7, 10). Using the side agreement to publicize labour rights violations or to forge cross-border links can be advantageous, but these goals must be informed by an explicit commitment to expose the inadequacy of the current trade regime.  Without this commitment, activists risk  becoming token participants in negotiations that will not genuinely address the problematic features of the neoliberal mode of integration. When participation is limited in this manner, activists do risk legitimating the very system they are intending to challenge. Permitting participation only if it contributes to the overarching goal of undermining current liberalization processes permits the affirmation of campaigns structured around pragmatic considerations, while at the same time locating these considerations within a larger framework that clearly resists the notion of legitimating the current model of integration. Accordingly, the same considerations that inform debate over the NAALC can guide commentators on the SC in their evaluations of the utility of pursuing the clause approach. Efforts to insert labour provisions into TIAs should not be motivated primarily by the expectation that these provisions are independently capable of achieving beneficial ends with respect to protecting workers' rights. What is important is the very fact that workers' rights will be formally entrenched in TIAs because labour provisions by definition stand in opposition to the narrow economic vision around which these agreements have been constructed. As with the NAALC, a SC that is understood, publicized, and analyzed in these terms can accomplish a significant task. However, this conceptualization of the SC demands a more careful articulation of the motivation behind the clause strategy, and a more cautious approach to the implementation of the clause in existing trade venues, than has been the case to date.  87  TV. CONCLUSION While the arguments considered in this Chapter have demonstrated that the clause is not an ideal approach to resisting the current model of trade-led integration, they have not provided adequate reason to reject the SC strategy. Since this is a claim to which clause proponents like the CLC would readily concede, there is clearly reason to be cautious in pursuing the SC. Accordingly, the question with which we are left is whether the clause is an appropriate instrument which with to push for the development of an alternative more balanced model of integration. With respect to strategic methodology, the answer to this question is yes. As an approach to motivating the replacement of the current model of liberalization, the SC is capable of generating positive outcomes within the constraints imposed by the current economic and political climate.  With respect to content, however, the viability of the SC has not been  established. None of the arguments in this Chapter address the adequacy of the particular kind of clause being advanced by labour organizations: namely, one defined solely in terms of labour rights. Nor do these arguments apply specifically to a SC designed to introduce protections for the rights of working peoples. Rather, they can be used in support of any strategy that seeks to improve the trade system from within. As with the SC methodology, however, the content of clause proposals has been subject to significant criticism, particularly with respect to the differential impact of trade-linked labour rights on developed and developing countries and the range of issues to which the SC speaks. Accordingly, it is these criticisms that I address in Chapter four.  ENDNOTES  Labour proposals regarding SC provisions in various agreements include both binding and non-binding measures. Recall, for example, that with respect to the MAI, the CLC and TUAC called for the annexation of the OECD Guidelines for Multinational Enterprises, a preamble statement regarding the protection, enhancement, and 1  88  enforcement of basic workers' rights, and an enforceable provision regarding respect for internationally recognized core workers' rights. 1 will discuss this argument in more detail in Chapter four. In presenting the argument that supporting a SC is tantamount to legitimating the existing trade regime, I am attempting to offer a fair exposition of a view that tends not to be articulated in detail by its proponents. In some places, I have accordingly sought to develop the argument beyond the somewhat abbreviated claims of clause critics by making explicit the kinds of concerns that I believe underpin this position. This perception is reflected in opposition to a proposal to attach certain social protections to the NAFTA that was advanced by the Coalition quebecoise sur les negotiations trilaterales (CQNT). At the Common Frontiers meeting during which this proposal was presented, "[s]everal people accused the CQNT of waffling in their opposition to free trade by presenting the prospect of an acceptable NAFTA" (Common Frontiers 1996, 14). The ICFTU in particular appears to affirm this interpretation insofar as the organization claims that a SC would serve to protect and strengthenfreetrade (ICFTU 1997, 27). The CLC suggests a similar position by linking the following two observations: "[e]ven if the MAI includes the labour and environmental clauses that have been proposed, it will still have the effect offreeinghighly mobile capitalfromnational legal constraints. There may be some positive economic potential regarding this liberalization..." (1997d, 3). In characterizing the second branch of CLC strategizing in terms of the rejection of the problematic model of integration around which TIAs are currently constructed, I do not mean to imply that this is a strategic commitment held by the Congress alone. Many trade commentators both for and against the SC share the CLC's concern about the values underlying the liberalization process, as well as the organization's commitment to ultimately replacing these values. Opinion tends to diverge among these commentators with respect to how best to regulate international trade and investment, and not over the question of whether a new regulatoryframeworkis needed. The CLC goes on to argue that there is a need to develop and implement instruments to control global markets, including measures that will limit the hyper mobility of capital, and greater coordination of expansionary macroeconomic policies to counter the effects of lowest common denominator competition on standards, regulations, and wages (CLC 1997a, 19). Taken together with the above quote, this limited impact is likely due to the fact that labour organizations understand the 'most perverse' labour rights violations - those that the SC can reasonably be expected to remedy tend not to occur in the developed world. This is an issue to which I will return in Chapter four. Although the CLC does not articulate here why a SC is only a small part of the answer, other documents indicate that provisions on workers' rights would not satisfy the need to explicitly challenge the assumptions on which TIAs are premised. With respect to the MAI, for example, CLC past-president Robert White contends that: "I've demanded protection for labour rights and environmental standards. But I've continued to point out that the Canadian Labour Congress has major problems with the principles of the MAI, and we will continue to work with others in our society in a campaign to improve it" (CLC 1998d, 5). Similarly, White also maintains that: "We must use every chance to strengthen international recognition of these basic workers' rights. But I have made it clear, when the negotiations are finished, the Canadian labour movement will not support an agreement that gives more rights to corporations at the expense of Medicare, education, the environment, and working people" (CLC 1998d, 1). In each of these quotes, White suggests that achieving measures to protect labour rights is something separate from, or at least only part of, the CLC's objections to the principles and priorities that underlie TIAs. The eleven labour principles set out in Annex one of the NAALC are:freedomof association and protection of the right to organize; the right to bargain collectively; the right to strike; prohibition of forced labour; labour protections for children and young persons; minimum employment standards; elimination of discrimination in employment; equal pay for men and women; prevention of occupational injuries and illnesses; compensation in case of occupational injuries and illnesses; and protection of migrant workers. The first level of review promotes cooperation, consultation, and then ministerial consultation in order to resolve complaints pertaining to any of the above principles. If matters are not resolved through ministerial consultations and the issue pertains to what are referred to as 'technical labour standards', the second level of review provides for the establishment of an evaluation committee of experts. The committee is required to analyze each parties enforcement practices with respect to eight of the above eleven issues: forced labour; protections for children and young persons; minimum standards (including wages and overtime); employment discrimination; equal pay; and protection of migrant workers. The third level of review applies to only three labour standards, occupational health and safety; child labour; and minimum wages. Following the presentation of the report of the evaluation committee, this stage of review permits any party to request consultations with another party regarding whether there has been a persistent pattern of failure by that party to effectively enforce the standard(s) in question. They are then required to make all efforts to arrive at 2 J  4  5  6  7  8  9  10  89  a mutually acceptable solution. If this proves impossible, the agreement provides for the establishment of a arbitration panel. Some commentators suggest that the decision of the US, Canada, and Mexico to permit external parties to review the adequacy of efforts to enforce domestic labour laws is a significant concessionfromthe perspective of national sovereignty (Compa 1996). Following the initiation of complaints against Mexican branches of General Electric and Honeywell, some workers who had been dismissed were reinstated. These and other companies in the region "have instructed their managers to avoid putting them in a position of having new complaints filed against them - that is, to not fire workers for organizing" (Compa 1997, 19). Citing articles by Dora Delgado (1995, 1996), Compa suggests that NAALC cases do seem to have had some effect insofar as at least some companies appear to be taking a more cautious approach to dealings with employees. In addition, activities around the NAALC have helped to publicize union campaigns. With respect to a case against Sony, for example, "independent trade union advocates acknowledged that the public conferences and events surrounding the ministerial consultation program gave them an international audience that sustained their organizing effort" (Compa 1997, 19). These seven cases are: Honeywell and General Electric (US 940001 and 94002); Sony Corporation (US 940003), Sprint Corporation (Mexico 9501); Ministry of the Environment, Natural Resources, and Fishing of Mexic 9601); Maxi Switch (US 9602); Sex discrimination in the Maquiladora Sector (US 9701). For summaries of these cases, see Cook et al 1997, 1-8; McGrady 1998, 10-16. Some supporters of the NAALC agreement do argue that the provisions of the side agreement should be replicated in other TIAs on the grounds that these measures provide a 'stepping stone' to the realization of other, more meaningful labour protections. 11  12  13  14  15  90  CHAPTER FOUR  Moral High Ground, Competitive Low Ground, and Other Myths [T]he biggest protectionists were the G-77, which is the developing countries. They did not want anything that would interfere with their ability to havefreetrade zones - to attract investors by offering them up the cheapest labour, no taxes, barb wire fences, no health and safety, people to work... (Interview subject 10, 14). GATT negotiations and the formation of the World Trade organisation were not intended to change th[e] unequal structure of [the] global economy. On the contrary they have strengthened the grip of [transnational corporations] and governments of the industrialised countries, over the millions of poor in the world. WTO has assuredfreertrade, but is the same institution that engenders systemic rights violations. It is a pity that trade unions and humanitarian groups in the North, who advocate WTO-labour standard linkage, have overlooked these fundamental contradictions (John 1996, 31).  /. ASSESSING THE CONTENT OF SOCIAL CLAUSE PROPOSALS Criticism of the SC strategy is advanced not only in terms of the limitations of working within the trade and investment system, but also on the grounds that the content of current clause proposals is inadequate.  Those concerned about the content of the SC insist that clause  provisions will operate to reinscribe the inequalities already pervasive within the global trade regime, and that the narrow focus of the clause on labour rights precludes consideration of other important aspects of the social dimension of trade. These arguments tend to take four main forms. The first advances the view that the SC is a kind of disguised protectionism pushed on the South by Northern countries interested in protecting their domestic producers. The second claims that the clause will reinforce the advantage that developed countries already enjoy in international trade and related institutions. The third insists that the SC will not address many of the problems to which some commentators consider it necessary to respond in order to mount an effective challenge to the current model of trade and investment liberalization. The fourth argument articulates the more general concern that a narrow focus on labour rights offers an inadequate foundation on which to construct genuine strategies of resistance to the current form of integration.  91  Objection One: The social clause is a form of disguised protectionism exercised by the North against the South. The accusation most commonly made against the SC is that it is a disguised form of protectionism. The argument in support of this claim is that wealthy Northern countries will use the SC as a lever to force up the costs of production in developing countries, thereby undermining the ability of these countries to compete successfully in the global market (Elwell 1995, 21; Hart 1996, 20; Haworth and Hughes 1997, 180; ICFTU 1997, 17; Khor 2000, 42, 1999d, 3; 1994, 16; Leary 1996, 177; Lee 1997, 177-8; Raghaven 1999d, 1; Servais 1989, 425; Shiva 1995, 8; Srinivasan 1996, 1998, 72-9; Trebilcock 1995, 312; de Wet 1995, 449-52). This criticism is most often advanced by, or on behalf of, developing countries - those predicted to suffer most if industrialized countries succeed in securing a SC in TIAs. The introduction of the requirement that traded goods be produced in a manner consistent with basic labour rights would provide the North with a new approach to an old complaint. The lower cost of production that follows from non-observance of fundamental labour rights in developing countries (allegedly) functions as an export subsidy, artificially enhancing the competitiveness of Southern products in Northern markets.  Labour standard violations in  production processes make Southern exports cheaper for developed country consumers than goods produced by domestic industries that incur the costs associated with observing labour standards. Essentially, industrialized countries are being penalized for their currently better record on labour protection, while worker exploitation bestows an (unfair) trade advantage on developing countries (CLC 1999b, 8; Elwell 1995, 30-1; Hansenne 1996, 237; ICFTU 1997, 17; Khor 1994,16; Lee 1997,177; Servais 1989, 423; Trebilcock 1995, 316). Proponents of the SC believe that obliging exporters to respect core labour standards will counter the 'unfair' advantage which developing countries currently enjoy in production. Under  92  a SC, these countries would be forced to either implement labour standards, and thereby incur the costs that flowfromcompliance; or ignore the requirements of the SC, and thereby incur the costs associated with the imposition of various trade penalties.  1  Since both options would raise  production expenses in the developing world, and correspondingly the cost of Southern imports in Northern markets, a SC would eliminate the 'subsidy' currently delivered to Southern producers via their disregard for the rights of working people (Khor 1992a, 2-3; 1994, 18; 1999a, 2). For many developing country commentators, the fact that either respecting or disregarding a SC would result in increased expenses for Southern producers means that the clause would erode the primary comparative advantage of developing countries: namely, their lower labour costs (Elwell 1995, 21; Haworth and Hughes 1997, 180; Khor 1994; van Liemt 1989, 435). While proponents of the SC insist that lower labour costs should not be achieved through the repression of basic rights, many developing countries maintain that their lower labour costs are not causally linked to the deliberate exploitation of workers. What explains the expenses associated with production in the South is "the general low standard of living and the lower level of development" in these countries (Khor 2000, 47). Since deliberate disregard for workers' rights is not implicated in lower labour costs, achieving a competitive position in the global economy on the basis of these costs is a legitimate comparative advantage for developing countries - one they should be permitted to use on the road to industrialization (Blanchard in Servais 1989, 428; Compa 1992, note 45; Khor 2000, 47). Northern attempts to 'correct' this labour cost disparity through a SC are motivated by a desire to eliminate the incentives that attract corporations to the developing world, thereby compromising the ability of Southern countries to compete in the global market. This protectionist sentiment is reflected in the fact that the lower cost of labour in the South is viewed as an unfair trade advantage, while the 93  exclusive control over technology and capital enjoyed by developed countries is neither questioned nor subject to penalty (Khor 1994, 18). In short, opponents of the SC insist that it is an attractive instrument because more wealthy Northern countries can be sure that it will disproportionately affect Southern producers. Some SC skeptics suggest that the above described outcomes - increased production costs and the erosion of legitimate comparative advantage - are part of a deliberate attempt to retard development in the South. The North seeks this result as a means of insulating domestic industries, and the jobs and products they generate, from (increasingly competitive) Southern imports. Calls for such protection have become more pressing as a result of the (unemployment crisis that plagued many industrialized countries even in the face of economic growth (Khor 1994, 16; Srinivasan 1998, 73; Stanford 1999).  For SC opponents, it is this employment  situation that has inclined developed country governments to target the low cost, low standard conditions of work in developing countries as the cause of (alleged) North-to-South employment shifts. In other words, in the search for politically popular explanations of employment trends: [Developed countries] are pointing to Southern countries as 'culprits' that exploit workers with low wages and poor labour conditions... in order to tempt transnational corporations [TNCs] to move their production awayfromthe high-wage North. As a result, the argument goes, TNC jobs are thus movingfromNorth to South, causing unemployment in the former (Khor 1994, 16).  Against a backdrop of domestic crisis, it is unsurprising that some Northern governments and organizations find the SC appealing as a means to undermine the attractiveness of Southern production locations. Not only will the clause halt the (supposed) exodus of jobs from higher to lower-cost jurisdictions by undermining incentives for corporate relocation, but it can be justified on the basis of legitimate aspirations like improving the lot of workers (Haworth and Hughes 1997, 180-81; van Liemt 1989, 435), and responding to demands for action on what activists characterize as the profoundly negative implications of TIAs (Hart 1996, 30; Keet 2000, 141; Khor 2000, 41-2).  For those suspicious of the SC, however, the notion that wealthy 94  industrialized countries are deliberately attempting to use the SC to slow development in the South in response to an intractable domestic crisis strongly indicts the clause as nothing more than a protectionist tool. On this view, the SC is a means to eliminate threatening competition and raise tariff barriers (or to placate increasingly militant activist groups) that is merely disguised in the language of labour rights (Hart 1996, 11). Support for this interpretation is drawn from the fact that there is purportedly little evidence to indicate that lower costs and standards in the South are indeed detrimental to higher cost and standard jurisdictions in the North. On one hand, it is not clear that competition from the South, as opposed to domestic structural and macroeconomic factors, is the primary cause of Northern unemployment (Khor 1994, 16-7; Lee 1997, 182; Raghaven 1999d, 4-7). On the other hand, several commentators have concluded that regulatory costs are not a primary consideration in corporate decisions about the location of investment. The only evidence available to support arguments about 'footloose' corporations searching the globe for low cost jurisdictions is anecdotal. No systematic studies have confirmed this contention (Hart 1996, 26-7; OECD 1996; Srinivasan 1996, 30; 1998, 77).  2  Claiming the moral high ground: 'free trade' vs. 'fair trade' In response to accusations of protectionist intentions, the SC is often defended with moral arguments, generally couched in the language of fairness. Arguments of this type highlight the unfairness of a trade regime that allegedly permits countries to pursue economic success at the expense of their workers, and correspondingly, the way in which a SC will promote 'fair trade' by preventing this kind of behaviour. As the ICFTU writes, "adherence to the seven core labour standards would prevent the most extreme forms of cut-throat competition and exploitation, especially of children and of people in a vulnerable labour market position, particularly women" (ICFTU 1998, 2). 95  The notion of fair trade has both an economic and a human connotation. Defenses of the SC grounded on the concept of economic fairness appeal to the above argument that countries' failing to respect fundamental workers' rights are able to produce goods at a lower cost, thereby gaining an unfair advantage in competitive markets. By ensuring that the costs of compliance with labour standards are borne by producers, the SC will allow the international trading system to function more fairly and efficiently on the basis of actual, as opposed to subsidized, pricing (Compa 1993a, 150). As a result, some SC proponents actually claim that a SC will serve to enhance free trade and reinforce the global economy, an interesting conclusion for commentators generally concerned to secure the adoption of a clause in order to alter the current pattern of liberalization (ICFTU 1997, 24). Arguments about economic fairness largely fail to engage with the substance of the protectionist objection insofar as they simply advance a different interpretation of the claims appealed to by opponents of the SC. Clause skeptics do not interpret differences in production costs between North and South as trade distortions that generate unfair advantages for developing countries. The foundation of the protectionist objection is to challenge developed countries' ability to define what counts as 'fair trade' to their own advantage. As Chakravarthi Raghaven writes, the expressions 'free trade' and 'fair trade' "are often used as slogans: whatever one does is assumed to be 'free' and 'fair', while what one's partners and trade rivals do is being portrayed as 'unfair' and 'unfree'" in order to justify the imposition of trade restrictions (Raghaven 1999d, 1). As such, defenses of the SC grounded on appeals to economic fairness essentially reproduce the power dynamics put at issue by the original objection. Arguments about human fairness similarly tend to miss the point of the protectionist objection insofar as they are grounded on the notion that the SC is needed to prevent worker exploitation. The implication of this characterization is that labour rights are low as a result of 96  the deliberate oppression of working people, and not due to poverty and underdevelopment as many Southern commentators insist (Srinivasan 1996, 33).  This perspective gives rise to  unconvincing blanket dismissals of the substance of concerns about the protectionist potential of the SC. For example, some commentators argue that the positive intention behind the adoption of the SC - namely, improving the lot of workers - is sufficient on its own to justify the implementation of the clause (ICFTU 1997, 15; van Liemt 1989, 435).  The accusation of  protectionism is then rejected as the claim of those who wish to retain their ability to violate basic rights (CLC 1998b, 3). More interesting are human fairness claims that characterize the SC as a means to ensure that the benefits of liberalized trade flow not only to foreign investors and local elites, but also to working people (CLC 1997a, 19-20; Common Frontiers 1996, 32; Compa 1992, 161; ICFTU 1997, 9; 1998, 2-4; Interview subject 5, 6; Interview subject 10, 5; van Liemt 1989, 435; Servais 1989, 425). This intuitively appealing aim is reflected in the following two arguments. To begin with, SC proponents maintain that the accusation that the clause is a protectionist tool is grounded on a narrow understanding of development: one that sanctions the pursuit of economic success at the expense of generalized social protections. In order for development "to be more than a hollow achievement benefitting only foreign investors and local elites... worker rights must progress simultaneously with economic development" (Compa 1992, 161). Measures like the SC are accordingly needed to oblige trade bureaucrats to consider the impact of TIAs on working people (Hansenne 1996, 234). The second argument is that international labour standards are a public good based on shared conceptions of morality and social justice, and not simply endogenous constraints developed in accordance with country-specific regulations, institutional structures, or levels of economic development (Haworth and Hughes 1997, 186, 195). This argument rests on the view 97  that the elimination of exploitative labour practices and inhumane working conditions is in fact a "universal moral imperative" - a moral prescription that applies equally to all people in all countries (Lee 1997, 181). The realization of this moral imperative is unlikely to be secured through isolated national initiatives around labour rights because the efforts of some countries will be undermined by the actions of'defectors': countries that seek to gain an unfair advantage by continuing to violate labour rights while others move towards greater recognition and respect (Hart 1996, 7; Lee 1997, 181; de Wet 1995, 448). What is instead needed is public intervention at the international level, for example, through the implementation of a SC that enshrines fundamental labour standards. Since this view implies that the SC is a necessary instrument of international cooperation, the clause should not be seen as a protectionist weapon but as a neutral public good integral to achieving the goal of improving the lot of workers in the North and the South. What commentators advancing this view do not consider, however, is whether other cooperative strategies could satisfy the requirement for international public intervention while avoiding the criticisms that plague SC proposals. Fairness versus development Arguments predicated on economic and human fairness essentially 'rank' the moral repugnance of exploiting workers above the possibility that the SC may undermine the competitiveness or development of Southern countries. In this context, clause critics recognize f  that it is convenient for SC advocates to rely on value-based claims that appeal not only to the moral convictions of citizens in the developed world, but also to their self-interest as workers (Khor 1994, 16-7; Lee 1997, 182; Raghaven 1999d, 5). However, the fact that clause proponents suggest that available options are polarized between implementing a SC and permitting continued repression and exploitation belies the fact that they are not really interested in Southern concerns about the relationship between the SC and development. Unsurprisingly, 98  Ithen, opponents of the SC view this ranking of moral over economic/development concerns with suspicion. Many Southern commentators strive to develop a broader view of fairness in international trade, arguing that the SC essentially makes a scapegoat of the South while leaving intact what is in fact a problematic world economic regime. For example, Srinivasan points out that "there is a curious asymmetry in the contents of the proposed clause" in that it focuses almost exclusively on labour standards presumed to be low in developing countries, and not on standards absent in many developed countries. Such an asymmetry "would be unlikely, if the driving force behind the social clause was some universal moral concern with labour standards" (Srinivasan 1996, 34).  3  Further, i f wage and standard levels in developing countries are primarily indexed to  poverty and lower levels of development (and not deliberate exploitation), a linkage between workers' rights and trade may in fact prove counterproductive.  Such a link would place  additional pressure on developing counties to conform to standards that are, at present, economically and socially inappropriate, with workers being forced to bear the costs in terms of decreased or lower quality employment (Compa 1992; Khor 2000, 48-9). From this perspective, the SC is actually a potentially harmful response to concerns about conditions of work and/or import competition.  Objection Two: The social clause will function to reinforce the advantage that northern countries enjoy in international trade. Whereas the above objection portrayed the SC as a protectionist tool, this criticism suggests that a SC could be used by more powerful countries in the North to preserve the advantages they currently enjoy within the international trade regime. Opponents predict that the SC will yield this outcome for three reasons. First, by permitting the imposition of inappropriate Northern standards on developing countries.  Second, by granting a Northern dominated  institution authority over labour rights. And third, by providing developed countries with another 99  form of leverage over the South. Northern standards, universal rights, and the erosion of sovereignty Many developing country commentators argue that the content of the SC is constructed around 'industrialized country standards'. In other words, the standards to be contained in the clause are specific to the experiences and values of Northern states, and are not simply transferable to countries with different cultural landscapes, political contexts, social priorities, and economic needs.  Given that the SC would impose these Northern values on Southern  countries in a manner that bypasses national law and local decision-making processes, the clause is condemned as a blatant example of cultural and economic imperialism, as well as an unjust interference in the sovereignty of the developing world (Cohen 2000, 206; Common Frontiers 1996, 17; Compa 1992, 160; Elwell 1995, 23; Lee 1997, 183-4; Raghaven 1999c, 3-4).  4  In response to the claim that the SC enshrines industrialized country standards, proponents of the clause argue that the core labour standards in question apply to all countries 5  regardless of such factors as culture or level of development (CLC 1996a, 70; 1998b, 2; 1999b, 6; Compa 1993b, 188; Elwell 1995, 29; ICFTU 1997, 29-30; Hansenne 1996, 233-4; Hart 1996, 18, 21-2; John 1996, 31; MacShane, 67). Claims about the universality of these labour standards are justified on the grounds that the SC will contain only fundamental rights on which there is already general international consensus.  This consensus is reflected in the widespread  ratification of the ILO Conventions fromwhich these rights are drawn, as well as the inclusion 6  of these rights in other key international agreements, such as the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights, and the 1998 ILO Declaration of Principles and Rights at Work (Alternatives  1999, 33-4; CLC 1996a, 70;  Hansenne 1996, 231; Hart 1996, 21; Haworth and Hughes 1997, 185; Leary 1996, 215; Lee 1997, 184; de Wet 1995, 453-5)7  Given that countries from both the developed and the 100  developing worlds have committed to uphold these international instruments, the SC cannot be said to reflect values specific to the North. While it is true that the rights to be contained in the SC are a part of widely accepted international agreements, Srinivasan (1996) argues that it is overly optimistic to claim universality for these rights on the basis of these texts. Widespread ratification of international instruments outlining the rights of working people does not change the fact that almost none of these rights have been realized to date, including within OECD countries. To the extent that the rights indexed to SC proposals would be more accurately described as "universal aspirations, perhaps to be attained at some unspecified and distant future", Srinivasan insists that any "claim of universality and eternity, for a subset of rights covering the so-called 'core' labour standards, is overblown" (1996, 7). What Srinivasan's conclusion overlooks, however, is the fact that what is central to resisting the charge of Northern imperialism is the universality of the content of the SC, and not whether this content has been realized to date. More difficult to refute, then, is the interpretation of Srinivasan's observation advanced by Michelle Swenarchuk. She suggests that the fact that "many countries have ratified but not implemented [ILO] conventions... indicates the limits of their acceptability within the ILO membership" (Swenarchuk 1998a, 10; emphasis added). In other words, Swenarchuk challenges the notion that the rights to be contained in a SC have been universally affirmed by signatory countries despite the widespread ratification of relevant ILO conventions and international agreements. In addition to resisting the allegedly imperialistic intentions of the North, recall that the above criticism of the SC stated that the imposition of a clause would amount to an unjust interference in the sovereignty of developing states. To date, the arguments of clause supporters like the ICFTU contain only inadequate attempts to evaluate the sovereignty-related effects of the SC. On one hand, the ICFTU suggests that the SC would actually strengthen sovereignty by 101  returning the power seized by corporations to the people. "A workers' rights clause would restore sovereignty by allowing policy to be determined through negotiations - providing a counterweight to the enormous economic muscle of TNCs" (ICFTU 1997, 28). On the other hand, the ICFTU implies that even if the SC did function to constrain sovereignty in some manner, this outcome would not constitute sufficient grounds to reject the clause because the trend towards declining sovereignty is currently underway. For this organization, sovereignty is already "something of a myth" (1997, 28). It is certainly not obvious that an (alleged) erosion of sovereignty provides adequate reason to dismiss concerns about the relationship between the SC and sovereignty, or to imply that it is unnecessary to differentiate between the impact of the clause on the sovereignty of developing versus developed countries. As Michelle Swenarchuk remarks: 8  This summary dismissal of national sovereignty issues fails to reflect the plethora of sovereigntyrelated conflicts that flowfromthe international trade regime, and the difficult strategic thinking that concerned citizens are pursuing around the globe to preserve national communities and values. Further, the most powerful countries in the world... which dominate the world trading system are in no danger of becoming 'banana republics.' The sovereignty issue does not affect all countries in an identical manner (Swenarchuk 1998a, 10).  Clearly there is a need for further dialogue about the relationship between the SC and sovereignty on the part of clause proponents, and a need for clause opponents to more carefully articulate the ways in which they expect a SC to negatively impact on the sovereignty of Southern states. The WTO as the policing body for labour rights The implementation of a SC at the WTO is expected to reinforce the existing (iniquitous) distribution of power in trade relations because it will grant more power to an institution designed to serve the interests of the North (Common Frontiers 1996, 20; John 1996, 31-2; Khor 1994, 18; Khor 1999a, 1-2; Raghaven 1999d, 4). On this view, the WTO was chosen as the site for SC debate because it is dominated by developed countries, and as such, will interpret and 102  enforce the rights to be contained in the SC in a manner consistent with only Northern interests. This accusation of Northern advantage within the WTO is advanced on the basis of arguments about pervasive structural inequality within this institution. Some commentators argue that key WTO processes - particularly consensus-based decision-making and dispute settlement - are repeatedly manipulated by more powerful members of the WTO, resulting in the exclusion of developing countries and/or their forced acquiescence to agreements forged among developed states (Bello 2000, 85-6; Keet 2000, 131, 145; Khor 2000, 44-5). In light of such trends, there is too great a risk that the implementation of a SC under the auspices of the WTO will yield comparable exclusionary outcomes in the labour arena, including the one-sided application of clause discipline against Southern states. For many developing countries, this is adequate reason to remain suspicious of even the prospect of initiating discussions about workers' rights at the WTO, particularly in the absence of any consideration of the broader context of inequality in which trade and labour issues are embedded. Indeed, some Southern commentators go as far as to suggest that labour should not be considered a 'trade-related' issue, and as such, should not be addressed through trade instruments at all (Khor 1999b, 2-3; 1999e, 3; Leary 1996, 177). While it is clear that trade does impact on employment levels, conditions of work, and other labour-related issues, the concerns of developing countries about the WTO do appear to be borne out by past precedent. The expansion of the trade agenda to include such controversial Northern priorities as intellectual property and investment has taken place largely without the support of the developing world, and in the absence of parallel consideration of many issues of concern to Southern states. According to some commentators, developing countries have learned from this history that their interests will be ignored when they conflict with developed world demands (Chimni 1992; Khor 1994; 1999b; 1999d; Raghaven 1999b). Within such an unequal 103  trading system, there is simply too great a risk that the labour rights to be contained in a WTO SC will be co-opted to serve the interests of the North. In response to the argument that a Northern dominated institution like the WTO will interpret the content of the SC in a manner that serves only the interests of developed countries, some clause proponents defend the potential of this institution in the labour rights arena. The ICFTU simply asserts that the legitimacy of the WTO is beyond question because decisions are made on the basis of consensus (ICFTU 1997, 28).  While this position obviously fails to  consider developing country concerns about decision-making processes, other commentators cite positive assessments of the potential of the WTO to surpass GATT, and in particular, to provide stronger enforcement measures for labour rights. For example, Michael Hart argues that many specific achievements attest to the WTO's "richness and revolutionary nature": its permanency; the successful forging of a single, integrated set of rules to replace piecemeal GATT agreements; the expansion of GATT principles to trade in services and intellectual property; the replacement of the GATT principle of 'special and differential treatment' for developing countries with the recognition that these countries need to be full and active members of the WTO; and perhaps most importantly, the dispute settlement system that makes all WTO commitments 'credible' (1996, 8-9). According to Hart, these developments "underscore why the trade regime is now 9  well ahead of any other international regime in terms of either enforceability or credibility" (1996, 10). But they also suggest that the WTO could provide a means of realizing the complex task that current international labour instruments to date have been unable to fulfil:  the  translation of formal recognition of basic workers' rights into widely applied and enforceable policies. Assessing the potential WTO is a difficult task. Activists concerned with labour arid environmental standards, poverty, equality, and so on, are correct to criticize this institution for 104  its inaccessibility, non-transparency, and general lack of receptiveness to social interests. However, it is also true that the formation of the WTO marks a significant achievement in international governance even if the direction of this governance is less than satisfying to social activists. Irrespective of the potential for this institution to improve upon GATT or to enforce labour rights, then, it is essential to evaluate the WTO in terms of the pre-existing patterns of inequality on which it is constructed. From this perspective, SC skeptics may argue that Hart's characterization of the WTO simply offers a positive reinterpretation of the very WTO provisions criticized by many Southern commentators. The expansion of the trade agenda and the initiation of a comprehensive dispute settlement system are key issues with which developing countries take issue in their evaluations of the international trade regime. Praise for these aspects of the WTO in the absence of significant engagement with the question of how such provisions will operate in light of underlying inequalities is not a response to Southern concerns about this institution. Regardless of the stated or actual intentions of WTO members, unequal participation in, and access to, this institution serve to disadvantage developing countries. Labour rights as a form of leverage over the South The final argument in support of the claim that a SC will reinforce the trade advantages currently enjoyed by more powerful Northern states is that the clause will provide these countries with another form of leverage over the South. As with the conditionality of aid payments (Khor 1999g, 2-3), the North could use the threat of formalizing a trade-labour linkage to achieve concessions in other areas, or the threat of established SC sanctions to oblige developing countries to pursue certain policy initiatives. As Khor notes with respect to the WTO: 10  Issues that the northern countries agree upon are given prominence and are pushed, even against the wishes of many developing countries, until new agreements are reached. In the negotiations, the interpretation of the powerful countries on how an issue should be treated is very likely to prevail, due to their much stronger negotiating capacity and bargaining position (Khor 2000, 16).  105  While one may initially think that a SC would be equally available for developing countries to use against developed states, Southern commentators argue that the clause is unlikely to genuinely increase the influence of developing countries over the developed world (Keet 2000). Two trends provide evidence for this claim. First, the tendency of SC discussions to concentrate on the activities of developing countries while largely overlooking both the labour rights violations regularly committed by industrialized states, and their lack of reciprocity in the implementation of other labour protections (e.g. domestic legislation; ILO Conventions) (Haworth and Hughes 1997, 193-4; Raghaven 1999d, 8; Srinivasan 1996, 34). Many developed countries fail to uphold national commitments on pay and employment equity, forced labour, and/or unionization and collective bargaining. At the same time, the US has ratified only one of the seven core ILO conventions associated with the SC despite the fact that it has long been a vociferous advocate of establishing formal links between trade and labour. Despite the failings of developed states in the labour arena, discussions of workers' rights tend to rely on examples of workers' rights violations in the developing world.  Consider, for example, the countries  referenced in the texts of key labour organizations that support the SC. The ICFTU (1997) highlights Korean labour legislation (21); the cut-flower industry in Colombia and Uganda (35); and bonded labour in Fiji (48), while TUAC offers case studies of China, Malaysia, Sri-Lanka, Costa Rica, and South Korea (1996, 17-22).  11  Second, the unequal distribution of power in the global economy makes it likely that the SC will disproportionately be used to effect changes in developing countries (CLC 1992e, 14; 1999b, 8; 1999d, 5; Hansenne 1996, 237; Hart 1996, 11; ICFTU 1997; van Liemt 1989, 435; Trebilcock 1995, 316; TUAC 1996). On one hand, only powerful states are likely to prove capable of securing compliance with the provisions of the SC given that the effects of labour provisions "depend largely on the leverage which the respective parties can exert" (Servais 1989, 106  426). The history of other trade-labour links suggests that a SC will be used against some of the weakest and most impoverished countries in the world (ICFTU 1997, 14-5; Swenarchuk 1998a, 23). As the ICFTU observes regarding the Generalized System of Preferences (GSP) of the US, this system may provide a powerful instrument for enforcing international labour standards, but the countries suspended from GSP status at the time of writing were Brunei, Liberia, Maldives, Mauritania, Sudan, and Syria (ICFTU 1997, 41). On the other hand, unlike developing states, powerful countries can make demands with respect to labour provisions without risk of serious reprisal. As Keet writes regarding the WTO 12  dispute settlement system, "[t]he impact of such putative measures upon the strongest economies would invariably be limited, but the economic and political risks would be considerable to the weaker implementers of such sanctions" (Keet 2000, 129-30). If punitive action were initiated against a developed country, economic and social disparities between North and South suggest that the burden imposed by the application of sanctions would be uneven. These measures will invariably impact more heavily on smaller, developing countries that tend to rely on exports instead of import substitution, that face balance of payment difficulties, and that often cannot develop substantive negotiating positions due to a lack of human and/orfinancialresources (Khor 2000, 15-16; van Liemt 1989, 443-4). For these reasons, opponents of the SC conclude that existing inequity in the international system ensures that a SC will "only work to the advantage of the powerful and dominant" (Raghaven 1999d, 9). Supporters of the SC do not have a great deal to say in response to the claim that the clause will provide the North with greater leverage over the South other than to draw attention to anticipated benefits of a SC for developing and developed countries alike.  These benefits  include: countering the trend towards lower wages and standards that ultimately only benefits TNCs (Compa 1993b, 167; ICFTU 1997, 8-9; 23; Haworth and Hughes 1997, 181; Lee 1997, 107  181; van Liemt 1989, 435); heading off unilateral protectionist inclinations on the part of developed countries (Compa 1993b, 190-1; ICFTU 1997, 27; Hansenne 1996, 237; Servais 1989, 425); and balancing a purely market driven approach to development with explicit social 13  requirements, thereby placing some constraints on mobile capital and creating conditions more suitable to beneficial, long-term investment (CLC, 1996a, 9; ICFTU 1997, 24; 28-9). Interestingly, these benefits characterize the coincidence of interests between North and South in a manner that developing country activists would likely resist given the above outlined suspicions regarding the protectionist intentions behind, and the development implications of, the SC. Proponents of the SC similarly fail to explicitly address the accusation that the clause focuses attention on only labour issues in the developing world. Indeed, the fact that many commentators call attention to the role that a SC will play in eliminating Southern countries' 'unfair' trade advantage suggests that the clause is interpreted as a tool to mitigate North-South economic relations. When the SC is understood in this way, the practice of citing workers' rights violations in the developing world likely does not appear to require justification, since it is these violations that generate the (allegedly problematic) competitive advantage currently enjoyed by Southern states. Objection Three: The social clause will not address many problems to which commentators consider it necessary to respond in order to effectively challenge the current model of trade and investment liberalization. The third objection to the SC is that it contains no resources to address what many commentators consider to be key problems arising from the current structure of the global trading regime, and as such, is an unsatisfactory instrument with which to challenge this regime. While there are many issues to which commentators point, the four highlighted most regularly are: employment in non-trade related sectors; the trend towards increasingly unstable and poor 108  quality employment; issues of genuine concern for the South; and the significant increase in corporate power. To begin with, SC discussion focuses on labour standards in the export-manufacturing sector since this is the sector to which trade-linked labour rights will for the most part apply. However, it is doubtful that export-manufacturing is an area in which the majority of developing country workforces are employed, or the area with the most pressing need for improvement on workers' rights (John 1996, 32; van Liemt 1989, 435). As Edgren observes, "the most blatant cases of exploitation and deprivation are not generally found in manufacturing industries which produce for export. The worst offences are usually found in plantations and mines, construction industry and small service firms working entirely for the domestic market" (1979, 525). Although a SC may result in some improvements in working conditions in the formal manufacturing sector, it may also serve to widen the gap between manufacturing workers and workers outside of this sector when it is the latter who tend to be more poor and in greater need of protection. Conversely, Khor argues that if the effects of a SC were to spread beyond firms involved in trade and export, the implications for local firms could be profound.  Small  businesses that cater to local markets would be unable to compete under higher productions costs, making it likely that many would be forced to close (Khor 2000, 49). Second, some commentators note that the SC will do nothing to counter the pervasive trend towards more part-time, insecure, and temporary employment, or to reverse persistently high levels of unemployment in the developed world (Armstrong, 1997; 1996; Connelly and MacDonald 1996; Duffy and Pupo 1992; Fudge 1996; Gabriel 1996; Jenson 1996; Luxton and Reiter 1997; Vosko 1998). The clause will not function as a proactive instrument to create employment opportunities, guarantee job security, or counter social dislocation. It will only be activated when labour standards are violated in the production of traded goods to be imported by 109  industrialized countries. In short, the SC will divert the attention of Northern governments and unions away from the domestic 'crisis of employment' and towards conditions in the developing world. As Vandana Shiva states: ...instead of strengthening the movement to deal with [the] unemployment crisis and job loss through enforcing social accountability on corporations and governments, social clauses make bedfellows of Northern trade unions and their corporations to jointly police and undermine social movements in the South (Shiva, 8).  Southern commentators further argue that a SC will do little to meet developing countries' genuine need for poverty alleviation, sustainable development, and a more equitable international economic regime (John 1996, 31). The SC will be of limited effect because it purports to address the lower wages and standards common to Southern workplaces without targeting the underdevelopment that keeps these wages and standards low. As noted above, developing country activists argue that support for the SC is predicated on the assumption that exploitation and deliberate suppression are keeping working conditions in the South at their current level.  It is this (incorrect) belief which motivates the view that a binding, legal  instrument like the SC is appropriate to the goal of improving conditions of work. However, the decision to address wage and standard levels through a mechanism like the SC overlooks the fact that there are many other factors implicated in the existence of low wages and standards. These factors include falling commodity prices, discriminatory trading arrangements, crippling debt loads, difficulty in accessing markets, and the negative conditionality of structural adjustment (Shiva 1995, 9) - issues that will not be ameliorated through better enforcement of labour standards (Alston 1982; Leary 1996, 181). As van Liemt asks: Why is the question of labour standards brought up in isolation from the broader issues of imbalances in the world trade structure - including the issue of greater market access through accelerated restructuring of developed country economies, and that of raw material prices, many of which are at a low level and continue tofluctuatewildly... why [should] the social clause be linked only to trade: would action not be more effective if it was also linked to public capital flows (such as official lending and aid flows) and strategic relations such as defence treaties? (van Liemt 1989,435; 447)  110  The final issue of concern is whether a SC has the capacity to address the expansion of corporate power that has occurred as a result of increased capital mobility and the declining regulatory power of nation-states (Bienefeld 1996; Boyer and Drache 1996, 15-16; Campbell 1993; Clarke and Barlow 1998; Cohen 1996, 190-2; 1997a; Epstein 1996; Helleiner 1996, 194-5; Petrella 1996, 74; Watkins 1988, 83).  14  Two positions on this question have emerged. On one  hand, Common Frontiers suggests that it may be possible to develop a clause capable of functioning as a counterweight to, for example, the investment code in the NAFTA.  Such a  clause could "begin the process of substantially altering the balance of power in NAFTA in favour of people's basic development needs" (Common Frontiers 1996, 11; 38).  The  Alternatives for the Americas text suggests that part of what such a clause would require is regulations that enforce the economic and social rights of citizens, and that prioritize internationally recognized human, labour, and environmental rights over investors' rights (1999, 56). Clearly, the inclusion of these issues would essentially transform the SC proposal of the labour movement into a much broader strategy; that is, one that addresses more than provisions to protect fundamental workers' rights. On the other hand, some critics believe that a SC in any form will fail to address the issue of corporate power because such clauses function to discipline only nation-states: a SC would create binding commitments for governments, and not for corporations (Cohen 1997b, 3-5; Cohen 2000, 205-6; Interview subject 9, 6-7; Shiva 1995, 8-9).  This observation not only  implies that the SC is fundamentally wrong-headed, but also that it will likely prove ineffective as a tool with which to limit corporate power given the erosion of state influence over capital. As discussed in previous Chapters, the formal and informal requirements of TIAs undermine the ability of national governments to oblige corporations to observe legislation and/or regulations, while investor-state dispute settlement provisions permit corporations to challenge national 111  initiatives they consider trade restrictive. To date, decisions in many such cases have called for the striking down of the domestic legislation or regulation in question and/or the payment of compensation to the offended corporation.  15  Of course, clause proponents may point out that a  SC will indirectly affect corporations if it inclines national governments to adopt new labour protections that businesses will then be obliged to respect. But as Swenarchuk points out, "the need for this large intermediate step" raises an important issue discussed in Chapter three: namely, whether countries can be expected to act around a SC when they have failed to comply with existing labour rights commitments to date (Swenarchuk 1998a, 7). Social clauses are necessary even if they are not sufficient There is not a lot that proponents of the SC can say to counter arguments that the clause will not address the four issues discussed above since it is true that the clause contains few, if any, resources to respond to concerns in each of these areas. Accordingly, the only avenue open to SC supporters is to demonstrate that the inability of the clause to address issues like poor quality employment, underdevelopment, or corporate power is not in fact an oversight, but an intentional limitation. In this vein, pro-SC labour organizations imply that while the clause is not the only measure needed to cultivate recognition of the social dimension of trade, it is a necessary minimum step. A SC is considered integral to the development of an alternative trade and investment agenda because existing international instruments protecting workers' rights are not yet linked to strong and effective enforcement mechanisms (CLC 1996a, 69; 1999b, 8-9; 1999d, 12; Common Frontiers 1996, 31; ICFTU 1998, 3).  Given this lack of adequate  enforcement, the achievement of a binding SC would represent an important international precedent. Even if this clause contained only limited labour protections, it would "give teeth for the first time to lofty principles that have existed for decades, but only as voluntary codes that are routinely flaunted by many countries" (Common Frontiers 1996, 18). 112  Understanding the SC as a necessary minimum response suggests that the clause should only be evaluated in terms of what it is clearly intended to accomplish. In other words, the clause should not be expected to function as a radical or transformative solution to the unbalanced nature of TIAs, but as an instrument to advance core labour rights.  What this  argument assumes, however, is that it is useful and valuable to pursue labour standards in isolation from other concerns provided that it is recognized that this is only a first step towards the goal of balancing the narrowly economic provisions of TIAs with social considerations. Concerns regarding this assumption are discussed in the following section. Objection Four: The social clause proposal is too narrowly focussed on labour rights.  Related to the above objection that the SC strategy fails to address important problems linked to the current model of trade and investment liberalization is the argument that clause proposals are too narrowly focussed on workers' rights. On this view, the decision to define the clause in terms of only core labour rights identifies the SC as a strategy that advances the cause of labour at the expense of other social interests (Interview subject 1, 2). Accordingly, labour organizations' support for the SC reveals that these groups are willing to promote their goals independently of, and prior to, the interests of those whose goals are not served by the adoption of protections for a small set of workers' rights. This does not entail that SC proponents believe that the aims of other organizations are unimportant, but it does imply that labour groups consider it unnecessary to embrace more comprehensive strategies in the pursuit of alternative models of integration. In the view of one interview subject, however, current political and economic pressures render it particularly inadequate for labour organizations to work on behalf of, and advocate solutions of relevance to, their members alone. First, the decision to pursue a narrowly defined SC rests on the assumption that labour groups alone have sufficient power to oblige corporations 113  to undertake measures to respect the interests of working people. It is certainly questionable whether this is currently the case given examples of unions being forced to concede to corporate demands, and the growing ability of corporations to evade national regulatory requirements (CLC 1997a, 6; Globe and Mail, Sept. 4/98, B5; Jan. 13/99; Apr. 14/99, B8; Vancouver Sun, Feb. 11/99. F5). Second, it is possible that a narrow labour rights platform will permit proliberalization governments and business elites to take advantage of fractures between labour, social, and activist organizations to contain the development of more broadly transformative strategies. Non-labour organizations have little reason to support the SC strategy given that it will fail to ameliorate the negative implications of TIAs in other areas (Interview subject 1, 2-3). Accordingly, some SC critics believe that effective resistance to the current model of trade and investment liberalization requires the development of more cooperative strategies. Labour organizations should work in tandem with other social and activist groups to develop comprehensive and broad-based platforms that preclude 'beggar thy neighbour' approaches. The result will be coalitions better placed to effectively resist the demands of elites, and armed with a more nuanced understanding of the economic, political, and social tensions underlying domestic and international restructuring agendas. As one commentator writes: "A narrow approach that helps only union members will not in the long run help to sustain the kind of political and economic environment necessary for adequate employment. We need to look beyond immediate benefit to what is needed to sustain Canada and Canadian jobs in the future" (Interview subject 1, 3; see also ORIT 1997, 2; 1998a, 4). Against arguments targeting the narrowness of current SC proposals, some labour organizations raise concerns about the viability of developing a broader strategic stance. As ORIT explains, some parts of the labour movement are concerned about the strategic implications of defending a more comprehensive social platform (e.g. one that embraces more 114  than the development of protections for core labour rights). In the context of debate over what should be included in a trade-linked instrument to address social rights, for example, ORIT writes: If it is to be comprehensive, it needs to reflect the broad interests of a full range of groups in civil society, thus including women's rights, minority rights, anti-poverty measures, environmental concerns, etc. While this might be an ultimate goal, many unions would see it as a poor strategic choice, worsening the chances of getting at least the core labour standards included ( O R I T 1998a, 10).  Whether or not it is correct to predict that protections for working people are more likely to be realized in the context of a narrow labour rights platform is difficult to establish. On one hand, it is legitimate for labour organizations to worry about the feasibility of achieving strategies constructed around a broader set of social interests. Indeed, some of the objections considered in Chapters three and four reinforce the legitimacy of this concern, in particular those highlighting the difficulty that confronts activist interested in securing enforceable social provisions within TIAs, and the unreceptiveness of trade institutions to social considerations. On the other hand, it is certainly convenient that the SC position dovetails with labour's support for a strategy that addresses only the interests of working people, while at the same time offering a rationale for the decision to pursue such a uniquely labour oriented approach to TIAs. The issue underlying all of these considerations is whether narrow strategies are more feasible because they seek fewer changes, or whether broad campaigns are more likely to be achieved because greater support for their adoption can be marshaled from diverse social locations.  Either way, this discussion  disguises the fact that many pro-SC labour organizations have failed to engage with the issue at the heart of the fourth objection: namely, whether the SC strategy is in fact weakened by the decision to index the clause to labour rights alone, and not to a broader social platform. //.  CONCLUSION:  RETHINKING  THE SOCIAL  CLAUSE?  In general, what underlies the objections considered in this Chapter is the concern that the  115  content of SC proposals renders this strategy a potentially dangerous approach to forging recognition of the social dimension of trade.  According to SC critics, there is significant  potential for the clause to yield negative outcomes for Southern countries in terms of development, economic growth, and access to key international institutions like the WTO. In addition, the SC risks marginalizing the many social issues to which it does not speak, and that will not be addressed through the achievement of protections for a core set of workers' rights. In many instances, the responses to these criticisms developed by advocates of the clause miss the point being raised in the objections to which they are intended to speak. This is particularly true with respect to Southern concerns about the impact of a SC on developing countries, but further engagement with concerns about the breadth of the clause is also warranted. This is not to say that the arguments advanced by SC skeptics are correct, but rather that these concerns highlight the need for more careful dialogue about the strengths and weaknesses of the clause strategy.  ENDNOTES  There is considerable debate over the form that SC enforcement measures should take, particularly with respect to whether sanctions are appropriate at any stage of the enforcement process. Despite considerable opposition to the possibility of sanctionsfromdeveloping country members in particular, ILO Director-General Michael Hansenne has alluded to the possibility that something more than a voluntary system may be needed (Hansenne 1996, 233). However, Hansenne also points out that it is up to individual states to chose to act on issues surrounding trade labour standards and trade; they must 'freely choose' to accept formal obligations (232). The ICFTU proposes a joint ILOWTO enforcement system that relies on sanctions - including the revocation of access to WTO mechanisms - as a last resort (1997, 25-7). This model is criticized by Swenarchuk on the grounds that it is based on a fundamental misunderstanding of the roles that the ILO and the WTO are capable of playing, as is evidenced by the trend towards re-regulation at the ILO, and the track record of the WTO on environmental standards (Swenarchuk 1998a, 12-20). For other proposals and comments on the enforcement of the SC, see: Alternatives 1999, 35-6; Common Frontiers 1996, 32; ORIT 1998a, 10-11. As Hart points out, however, further systematic evaluations of the relationship between workers' rights, wage levels, competitiveness, and investment patterns are needed (Hart 1996, 27). 1 will expand on this argument in Objection two. The argument that it is unfair to force developing countries to observe labour standards set by the industrialized world is sometimesframedin the language of the 'right to development'. On this view: 1  2  3 4  [Developing countries have a right to attract investment capital and new technology, and to develop their manufacturing capacity so that they can compete in the global marketplace. If the main competitive advantage that a country brings to the marketplace takes the form o f abundant, low cost female labor, the country should be able to use this resource to attract investment" (Compa 1992, 160).  While the argument that core labour standards apply to all countries regardless of level of development or culture is most often made by proponents of the SC, at least one clause opponent also makes this point. In the article,  5  116  'Social Clause as an Ideology', John maintains that participants in the national consultation of unions, workers' organizations, environmental groups, and human rights and child labour activists held in Bangalore, India in 1995 agreed that there was a "certain set of rights as universally accruing to workers in all countries, irrespective of the stages of their development" (1996, 31). Participants also agreed that these rights could be found in such international treaties as the UN Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and especially in the conventions of the ILO. However, John does points to other reasons to reject the prospect of introducing a trade-labour link at the WTO: the inability of the WTO to ameliorate the iniquitous nature of the global economy; and the inability to the WTO dispute settlement system to distinguish between the interests of workers and the interests of the state in which those workers reside in its rulings (31-2). For a table outlining the ratification of core ILO Conventions by a selection of OECD and non-OECD counties as of December 1995, see: Nigel Haworth and Stephen Hughes, "Trade and International Labour Standards: Issues and Debates Over A Social Clause," The Journal of Industrial Relations vol. 39, no. 2 (1997): 187. There is some debate over exactly where the line between core standards and other standards should be drawn; or in other words, over which standards should be included in each grouping. Compa suggests that certain civil and political rights are unarguably universal human rights (e.g. the right of association and collective bargaining), whereas other rights address 'mere' economic benefits (e.g. minimum wages, paid leave) (Compa 1993b, 188). Leary reviews the rights laid out in various instruments (ILO Conventions, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and some U.S. Legislation). She concludes that there is consistency regarding the universality of the right of association, the right to organize and bargain collectively and prohibition on the use of forced labour, but not regarding child labour or acceptable conditions of work (Leary 1996, 215-6). To be clear, I do not want to deny that the ICFTU is correct in acknowledging that national policy is being shaped to an increasing extent by global economic commitments (Cohen 1997; Grinspun and Kreklewich 1994; Hart 1996, 5, 10; Shields and McBride 1997). TIAs function to secure the adoption and implementation of particular (neoliberal) policy priorities regardless of whether or not these priorities have been democratically approved by citizens. This policy conditionally exerted by TIAs has two dimensions. The more visible dimension of TIA conditionality comprises the set of responsibilities and requirements contained in the text of each particular agreement. These obligations establish external constraints on domestic policy formation to the extent that the policies chosen must be consistent with the provisions of the agreement(s) in question. Failure to comply with these provisions may result in the assessment of penalties unless the policy in question is brought in line with TIA expectations. In addition to the external limitations imposed by TIAs, these agreements also function to create internal constraints on available policy options. Internal compliance with the priorities that form the foundation of liberalization initiatives is secured through the ability of domestic ruling groups to transform external constraints into objects of internal political struggle (Grinspun and Kreklewich 1994, 40, 45). In other words, the external constraints created by the provisions of TIAs are translated into the language of domestic politics, convincing local actors that the range of policiesfromwhich they can chose includes only those that accord with the agenda of privatization, deregulation, and economic liberalization. Marjorie Griffin Cohen speaks to this point in her article "New International Trade Agreements: Their Reactionary Role in Creating Markets and Retarding Social Welfare" (1996b). Her discussion of governments engaging in self-censorship in order to enforce TIAs suggests one way in which external constraints will be rearticulated into internal politics: 6  7  8  As the conditioning factors of the trade agreements become more familiar, there will be fewer and fewer dramatic examples of the ways in which these agreements impinge on the ability of the public sector to meet its obligations to people. Programs will simply be presented as 'too costly,' without proper explanation of why they would cost so much [e.g. due to threats of expropriation]. Few governments will have the political courage to take the kind of bold action necessary to counter the power that the trade agreements give international corporations (Cohen 1996b, 197).  For a complete list of the positive features of the WTO to which Hart (1996) points, see pp. 8-9. There are many examples in the history of international trade to indicate that a proposed or realized SC could be used in this manner. For example, at the Singapore WTO Ministerial Conference in 1996, the US pushed for an agreement on information technology despite the fact that no prior discussion of such a measure was undertaken in preparatory meetings. Consensus of the new Information Technology Agreement (ITA) was achieved in backroom negotiations among only the most developed countries and a few other pivotal states. The remaining countries were invited to accede to the agreed upon ITA in due course, should they so desire (Keet 2000, 140). 9  10  117  Of course, some commentators do attempt to document the presence of abusive labour practices in developed, as well as developing, countries. For example, in an article on international labour rights and sovereignty, Lance Compa outlines violations of workers' rights occurring in the US, the UK, and other European countries (1993a). For an optimistic analysis of the way in which trade-labour links in U.S. law have been used to improve labour conditions in Guatemala, see Lance Compa, "International Labor Rights and the Sovereignty Question: NAFTA 11  12  and Guatemala, Two Case Studies," American University Journal of International Law and Policy vol. 9, no. 1  (1993): 117-150. Although Hart allows that unilateralism does "breed contempt and cynicism and can lead to an erosion of rule of law", properly channeled unilateralism "can also lead to cooperative solutions that in the end may prove beneficial. Such cooperative international solutions can help both strong and weak deal with the need to find delicate compromises among competing domestic political interests" (Hart 1996, 28-9). Although the ability of nation-states to use regulation to control the activities of corporations is clearly declining, it is inaccurate to imply that this is an outcome that has been wholly externally imposed on governments. Drache and Gertler (1991) and Petrella (1996, 74) point to a parallel re-regulatory trend in the behaviour of nation-states: the conscious use of regulation to support market-creating activities. According to Drache and Gertler, "Neo-liberal governments, committed to competitiveness at all costs, now want to intervene across a broad front. They want to be simultaneously more non-interventionist and instrumentalist" (1991, 8). In the last decade, there have been a number of challenges to Canadian legislation and regulations under the auspices of the WTO or Chapter 11 investment provisions of the NAFTA. A number of cases have culminated in decisions against various policies, laws, and regulations, including: subsidies for the aerospace industry (Globe and Mail, Aug. 3/99, Bl; legislation concerning split-run magazines (Globe and Mail, May 2?/99, A l ; and the longstanding automotive tariff agreement between the US and Canada, the auto pact (Globe and Mail, June 1/00, B7). Others have included claims for direct compensation. Virginia based Ethyl Corporation launched a $250 million suit on the grounds that prohibitions on the manganese-based gasoline additive MMT were discriminatory (Globe and Mail, Aug. 24/98, B2). The case was eventually settled when Ottawa agreed to pay Ethyl $13 million in damages. Sun Belt Water Inc. initiated a claim for as much as $10.5 billion following British Columbia's decision to ban the export of bulk water in 1991 (Globe and Mail, Nov. 18/99; Swenarchuk 1999a, 2). Pope and Talbot Inc., a forest products company based in Oregon has argued for $150 million in damages on the grounds that the softwood lumber quota agreement between Canada and the US is unfair (Globe and Mail, Feb. 16/99, Bl; Swenarchuk 1999a, 3). S.D. Meyers Inc., a company that treats transformers containing toxic PCBs, initiated a claim for $30 million for losses allegedly incurred during a ban on the export of PCB wastefromCanadafrom1995 to 1997 (Swenarchuk 1999a, 2). 13  14  15  118  C H A P T E R FIVE  Alternative Visions of the Social Clause Strategy [Y]ou can turn a whole social clause into a much more strong, much more radical position that forces a reopening of these trade agreements... We're talking about taking the whole notion of the social clause and making that the centrepiece of any international trade agreement (Interview subject 7, 3-4). [TJhere's something called a social clause or a social charter... [that has] a very broad perspective about the agreements. If we were to think about trade agreements that incorporated that kind of social charter or social clause, it would fundamentally change the agreements. They wouldn't be what they now are (Interview subject 9, 1). The arguments discussed in Chapter four clearly reveal that many trade commentators consider the content of the SC to be problematic. Developing country representatives argue that the inclusion of labour standards in TIAs will function to further disadvantage the South, while others insist that a clause defined solely in terms of labour rights disregards other issues that should be addressed in efforts to resist the current model of integration.  Together, these  concerns suggest that there is good reason to rethink the content of current SC proposals. In addition to providing reason to query the content of the SC, discussion in Chapter four highlights the fact that proponents and opponents of the SC have generally failed to engage in a substantive exchange about the clause, its positive and negative implications, and what these implications mean in terms of overall assessments of the utility of the SC strategy. This second observation is likely connected to criticisms of the inadequate scope of the SC insofar as a lack of careful dialogue among clause commentators in part accounts for the limited content of current clause proposals. The version of the SC advanced by many Canadian and international labour organizations simply has not benefited  from the constructive insights of other  commentators concerned about the social dimension of trade and the development of a more balanced form of integration. The lack of engagement among those on both sides of the SC debate clearly indicates the need for further investigation and research, particularly in terms of the implications of the SC for  119  developing countries. However, more substantive discussion alone will not remedy the flaws in current SC proposals: such interaction must lead to some redefinition of the content of the SC as it is presently understood. A SC that is limited to the attachment of labour rights to existing and proposed TIAs not only provides an inadequate foundation for the kind of alternative trade agenda desired by clause proponents and opponents, but it also risks.providing pro-free trade forces with opportunities to exploit divisions among those broadly supportive of a new model of liberalization.  In this final Chapter, then, I explore some considerations that I believe are  important to the construction of a more adequate SC - one that contains resources to respond (at least in part) to many of the objections raised in Chapters three and four. /. REDEFINING THE SOCIAL CLAUSE: THREE CONSIDERATIONS Reinforcing existing patterns of inequality The considerations of power and inequality that ground feminist analysis are implicated in debate surrounding trade liberalization, particularly in terms of the relationship of developing countries to the international trade order.  Feminist thinking about the development and  implementation of policy reforms appropriate to the advancement of equality between the sexes may therefore offer insight on considerations that should guide the reformulation of the SC. In an article addressing the Canadian maternity benefit system, Nitya Iyer proposes a test for evaluating legislative and/or policy changes. This test determines whether a proposed law or policy can properly be considered a feminist or sex-equality enhancing reform. Iyer argues that in order for a reform to actually advance equality between the sexes, it must at a lninimum "attempt to reduce inequality between men and women in a way that is respectful of and attentive to differences among women" (Iyer 1997, 170). She goes on to explain that: Given the complex hierarchies of oppression in our society, any reform will have a differential impact across groups of women divided by class, racialization, disability, sexual orientation, and so on. Clearly, it would be impossible to stipulate that a feminist reform could be equally beneficial to all women, regardless of their differing situations; it is also impossible to require that  120  a feminist reform not benefit some women at the expense o f others. However, I suggest that it is  possible to insist that feminist reforms not exacerbate existing avenues of oppression, thereby contributing to the entrenchment of patterns of domination in the larger society (1997, 170; emphasis added).  Iyer's criterion that proposed reforms must not reinforce existing patterns of inequality provides a helpful tool for evaluating debate about the utility and desirability of a SC. Objections to the SC grounded on concerns about repercussions for developing countries essentially highlight the fact that the clause is expected to further entrench the lines of inequality that already structure the international trade regime. By undermining development prospects and exacerbating problems of access to and participation in international institutions like the WTO, it is anticipated by many Southern commentators that the SC will help to ensure the continued disadvantage of developing states. If these arguments advanced by developing countries are correct, Iyer's test would accordingly identify the SC as an inadequate reform. Any positive outcomes that the SC would yield for developed or even some developing states are undermined by the exacerbation of the disadvantage already borne by some of the poorest and most marginalized countries in the world. Since it is inadequate for a strategy to realize gains for some at the expense of those already more disadvantaged, efforts to reformulate the SC should be informed by a more serious appraisal of the relationship between the clause and existing inequalities in the international system. At this stage in SC debate, it seems fair to concede that there are an insufficient number of systematic clause assessments to conclude that its insertion in TIAs will indeed yield the kinds of outcomes predicted by many Southern commentators. While further research in this area is clearly needed, this context of uncertainty does not absolve proponents of the SC from their responsibility to take seriously the concerns articulated by Southern critics. To the contrary, uncertainty renders it more pressing for clause advocates to substantively engage with the issues raised by commentators from the developing world. Without such engagement, it is likely that 121  neither clause proponents nor opponents w i l l witness the reorientation o f trade to genuinely serve the development needs o f all countries party to T I A s , whether from the North or the South. Developing a strategy that w i l l minimize disagreement between the developed and developing world is particularly pressing given the tendency o f pro-free traders to exploit developing world objections to the S C to advance their own agenda.  1  For example, although  Canada initially supported the inclusion o f labour and environmental standards in the proposed F T A A , International Trade Minister Pierre Pettigrew recently argued that such measures should not be included in the agreement "at all costs." For while "[w]e have a level o f development in Canada that allows [these] standards" we cannot "step in and tell [other countries] to adopt our standards" (Globe and Mail, June 15/00, B7). The Minister's appropriation o f the language o f Southern concerns regarding the capacity o f the S C to realize positive change for developing countries highlights a potentially deleterious consequence o f division among commentators skeptical o f the existing trade agenda.  The  prospect that dissension may provide advocates o f the current trade and investment order with additional tools to resist recognition o f the social dimension o f trade is clearly counterproductive from the perspective o f all those concerned to realize a more balanced vision o f integration. However, some commentators predict that this kind o f co-optation is a likely response to escalating public opposition to the current trade agenda. With respect to recent protests around the Seattle Ministerial meeting o f the W T O , for example, Tony Clarke predicts that pro-free trade forces w i l l likely seek to contain the transformative potential o f any ensuing dialogue with civil society by: ...dividing] civil society into two groups: the good and the bad. The 'good' ones are those who generally agree with the basic goals and practices of global capitalism, asking only that social and environmental concerns be addressed. The 'bad' groups are those who reject the entire corporate globalization agenda and are prepared to fight for a people-oriented alternative (Clarke 2000, 7).  122  These labels of 'good' and 'bad' clearly correspond to positions attributed to many proponents and opponents of the SC, particularly in light of the argument that support for the clause is tantamount to sanctioning the retention of problematic TIA provisions.  This  recognition drives home the need for those concerned to forge an alternative model of trade and investment liberalization to develop a strategic platform around which there can be broader agreement. In this regard, taking Iyer's policy reform test seriously raises the question of how the SC can be reinvented in order to avoid re-entrenching existing lines of inequality in the international trade order. While a comprehensive answer to this question would certainly require research that extends beyond the scope of this thesis, the objections and responses to the SC discussed in Chapters three and four suggest two important issues to target in this process of reform: namely, the range of issues covered by the SC; and the location of the SC within the international trade regime.  These two issues are the second and third considerations that I  believe should guide the process of redefining the SC. The breadth of the SC Objections discussed in Chapter four demonstrate that there is widespread concern over the fact that the SC as currently defined addresses only workers' rights. Commentators argue that this narrow focus obscures the fact that there are many other issues implicated in the liberalization of trade and investment, and that consideration of workers' rights alone prioritizes the implementation of a narrow set of labour goals ahead of the realization of gains in other areas. Given these concerns, it seems important for any attempt to reconfigure the SC to query the breadth of the issues addressed by this instrument. In addition to workers' rights and other issues in the labour arena, it is possible for SC proposals to be defined such that they address a wide range of concerns, including: human rights, underdevelopment, poverty, food safety, patenting and intellectual property, the 123  environment, health care, sovereignty, culture, investment regulation, and so on. Constructing a SC around an understanding of clause content that includes these issues would clearly permit this strategy to challenge, not just the absence o f specific labour provisions from TIAs, but the fact that the entire content of these agreements is deficient from the perspective of social and economic justice. A strategy premised on the recognition that the realization of genuine social progress is contingent on the negotiation of complementary economic policies would constitute a first step towards launching a more fundamental challenge to the values and priorities driving TIAs. Such an approach would not only help to secure greater recognition of the diversity of the social dimension of trade, but it would draw attention to the economic reforms necessary to make trade-linked social commitments meaningful.  In the absence of this kind of broad-based  understanding of reform, the neoliberal principles that inform TIAs will continue to mitigate against the likelihood that even successfully implemented labour (or other social) provisions will generate significant positive outcomes, as was discussed in Chapter three. Adopting a broad understanding of the content of the SC will also permit this strategy to become a forum in which to emphasize the relationship between the many issues affected by the organization of trading relationships. A SC that addresses a comprehensive range of social and economic issues will permit such trends as declining labour standards and employment quality, increasing social insecurity, the striking down of environmental and health regulations, and the escalation of investor-state disputes, to be addressed as what they are: part of a of neoliberal restructuring.  single  platform  If the SC can become a vehicle through which to highlight the  connections between deleterious social trends, and accordingly the common cause of activists resisting these trends, it may cease to be perceived as a shortsighted and even dangerous tool designed to cleave off a subset of social issues for independent treatment. A SC that legitimates consideration of the social dimension of trade may instead be regarded as a tool with which to 124  expose and challenge the supremacy of corporate and government sponsored neoliberalism. As such, the SC may go some distance towards heading off corporate and/or governmental appeals to economic or competitive necessity as a rationale for relocation, deregulation, job and spending cuts, or the rolling back of wages and standards. The location of the SC within the international trade regime Recommendations concerning the need for a broader definition of the content of the SC leave open the question of the relationship in which this clause stands to the TIAs on which it is expected to impact. In other words, questions concerning the breadth of the SC do not speak to the fact that clause proponents currently propose to embed social issues within trade instruments. Arguments considered in Chapters three and four point to reasons for caution when evaluating the prospect of addressing labour (or other social) issues in trade venues. Recall, for example, the claim that there is a fundamental incompatibility between social goals and the economic priorities around which TIAs have been constructed, as well as the argument that attaching labour rights to trade instruments would augment the disadvantage that Southern countries already experience within international trade. In light of these and other criticisms, there is some question as to whether a reformulation of the SC should involve a querying of its location within the context of the international trading system. The obvious alternative to the insertion of a SC into the text of existing and proposed TIAs is the construction of a SC as a separate document.  In this context, the clause would  presumably function to mitigate the commitments established through any decision to forge a trade relationship towards the end of ensuring positive outcomes for communities, cultures, and countries. I believe that the SC could fill this role in one of two ways. On one hand, the ratification of an independent SC agreement could be made a prerequisite to membership in a TIA. In this way, all countries party to an agreement would be  125  obliged to structure trade, economic, and social relations in a manner consistent with the elements of the clause in order to gain access to the advantages that the TIA in question confers. This approach is appealing insofar as it would ensure that a wide range of social, environmental, and other considerations would have a legitimate place at the forefront of trade negotiations. Yet as with current SC proposals, a significant disadvantage is that the obligations created by the SC would remain binding on only national governments. The clause would have no direct impact on the activities of corporations, although businesses could be indirectly affected if states chose to adopt more restrictive legislative or regulatory initiatives in order to comply with SC provisions. On the other hand, a redefined SC could function as a checkpoint against which the adequacy and viability of provisions concerning trade, investment, or associated economic issues is measured (Interview subject 7).  Unlike the first alternative, which requires that national  policies be made compatible with SC provisions, this proposal demands that TIAs and related institutions be modified to ensure that they are capable of fostering a model of development consistent with the realization of a more just social and economic order. Evaluative priorities would be forced to undergo a shift, with the impact of proposed trade commitments on the issues included in the SC now taking precedence over concerns about investor rights, national treatment, and barriers to trade.  Those drafting TIAs would have the responsibility of  proactively demonstrating that these agreements do not detract from economic, social, or environmental sustainability, replacing a system in which the repercussions of TIAs for these issues are evaluated (if at all) after the fact. In short, the SC would precede and structure the implementation of provisions around trade and investment, creating a system whereby liberalization would only proceed under the auspices of economic and social justice. As one interview subject characterizes it, social provisions would be "the organizing centre of any kind of trade agreement" (Interview subject 7, 3). 126  In addition to addressing criticisms about the addition of a SC to TIAs, understanding the SC as a checkpoint against which trade and investment commitments are evaluated provides the clause strategy with resources to deflect the criticism that the SC targets only the actions of national governments, and not corporations. If the SC were to function as an evaluative standard for trade commitments, rather than simply creating obligations for national governments as a result of governmental ratification of TIAs containing a SC, the actions of all parties involved in international trade would be required to conform to clause requirements. In other words, the SC as checkpoint would preemptively require that all trade processes, and hence all parties to trade processes, produce commitments that meet the burden of economic, social, and environmental sustainability. Since the actions of corporations seeking international trade opportunities would be equally implicated in this burden of responsibility, a SC redefined in this manner would bind both corporate and governmental activities. The centrality of corporations in the development and entrenchment of an unbalanced international trade regime makes it key for a redefined SC to prove capable of targeting corporate as well as governmental activities on the global stage. Academics and activists agree that TNCs have been a primary impetus behind and beneficiary of the economic and political regime driving the expansion of liberalized trade and investment (Campbell 1993; Clarke 1997; 2000; Clarkson 1991, 116; Cohen 1996, 190-1; Common Frontiers 1996, 10; Grinspun and Kreklewich 1994; Jackson 1998; Shields and McBride 1997; Stanford 1999, 89; Watkins 1988, 83). The contribution of TIAs to increased corporate mobility, and the corresponding capacity of TNCs to take advantage of regulatory, tax, and wage competition, has permitted corporations to exact concessions from workers, communities, and governments (Campbell 1993, 24; CLC 1990e; 1991b, 41; 1993d, 8; 1997a, 6; 1999b, 2; Cohen 1996, 191; Globe and Mail, Sept. 4/98, B5; Shields and McBride 1997, 14, 18, 189; Workman 1996, 22, 35-7). At.the same time, TIA 127  rules that directly and indirectly limit domestic policy options are enforced through dispute settlement mechanisms that permit corporations to sue national governments for loss of actual or anticipated profits (Brodie 1995, 52; Cohen 1996, 192-3; Globe and Mail, July 20/98, A l ; Aug. 21/98, B l ; Feb. 11/99, A14; June 23/99, A7; Oct. 15/99, B5; Robinson 1998, 234-5; Shields and McBride 1997, 161-2; Shrybman 1998).  Along with this erosion of traditional notions of  national sovereignty (Drache 1996, 31), the inaccessibility and non-transparency of trade institutions and processes has essentially precluded the prospect of meaningful input from citizens' or activist organizations. As a result, the majority of people have been obliged to endure policies that have not only failed to yield substantial benefits, but have done so while allowing a small business elite to enjoy record profits (Clarke 2000; Stanford 1999). //. IMPLEMENTING THE REDEFINED SOCIAL CLAUSE: IS THERE REASON FOR OPTIMISM? The three considerations discussed in section one suggest that there is potential for the SC to be shaped into a more adequate instrument with which to push for the development of an alternative model of integration. A broader and differently located SC would challenge the existing trade and investment regime at a much more fundamental level than current clause proposals. Rather than simply calling for the addition of workers' rights to TIAs, a redefined clause would require the subordination of all trade commitments to the demands of economic and social justice.  The successful formulation and implementation of such a clause would  accordingly render it possible for TIAs and related institutions to be reclaimed to serve the needs of citizens, communities, and countries. From the perspective of implementation, however, some commentators may consider the realization of this kind of redefined SC to be an unrealistic goal, particularly in an economic and political climate that legitimizes the pursuit of economic gain at the expense of generalized social  128  well being.  While such concerns certainly point to a central difficulty confronting trade  commentators, I think that there is reason to be optimistic about the possibility of using a reconfigured SC to secure (eventually) a more balanced model of integration. To begin with, recent events provide reason to believe that efforts to challenge the current model of trade and investment liberalization in its entirety can indeed bear fruit. Consider, for example, the success of efforts to stall the first round of MAI negotiations; the size and strength of recent protests against the Asia-Pacific Economic Cooperation, the WTO, and the IMF; and some notable public concessions regarding the inadequacy of the current trade and investment system. Considering 3  these gains, the key question confronting activists today is how to sustain, harness, and direct existing momentum around future campaigns. In this regard, issues like the export of water and the safety of genetically modified foods provide likely sources for the cultivation of broad-based citizen support given their fundamental importance in the lives of all Canadians. As one interview subject acknowledges, "water can be a catalyst for getting a lot of people active again" (Interview subject 5, 22). In addition to recognizing the successes to date of resistance campaigns, the methodological insights of the CLC offer reason to be optimistic about the possibility of obtaining and using access to trade negotiations to advance an alternative trade and investment agenda. Combining the pragmatic, two-track approach that characterizes CLC activism with a broader and differently located SC may yield new opportunities to expose the economic and political values underlying a fundamentally unbalanced trade regime. As suggested in earlier Chapters, however, a prerequisite for the success of such efforts is the ability to ensure that participation in trade institutions and negotiations is organized in a manner that remains consistent with the overarching goal of (ultimately) undermining existing trade structures. To meet this requirement, it is incumbent upon any organization that chooses to participate in 129  negotiation processes to adopt a certain kind of stance. On one hand, it is crucial that labour organizations defend a broad interpretation of what it means to protect the rights of working people. It must be made clear that it is insufficient to simply add something like a narrow SC to TIAs while leaving the remaining components of these agreements intact to mitigate against the spirit, and the operation, of the clause. Similarly, labour organizations need to highlight the fact that workers' rights are implicated in a wide range of other issues, including underdevelopment, poverty, education, and so on. Meaningful protections for the rights of working peoples must accordingly take these issues into account, and most importantly, not achieve gains on a narrow set of labour issues at their expense. On the other hand, if it becomes apparent during the course of negotiations that trade bureaucrats are unwilling to countenance modifications to TIA provisions that mitigate against the possibility of securing genuine advancement on a broad understanding of labour rights, participating  organizations  should withdraw from negotiations.  In order for the SC to be an  empowering strategy, it cannot become a token gesture in the direction of economic and social justice, or a formalistic exercise limited from the outset to.achieving superficial change. The clause must function as a catalyst for future campaigns to promote the development of a just international trade regime, a role it will be unable to fulfil if its integrity as a broad alternative vision is compromised by the temptation of realizing small gains around labour rights. The SC must also function as a rallying point for citizens. Support for the contention that the current trade and investment agenda is inadequate is reflected in the escalation of popular protest against TIAs and related institutions. However, the concept of the social dimension of trade also already enjoys relatively widespread support, as is reflected in the emergence of proposals like the SC, the Alternatives  text, and the Hemispheric Social Alliance among  organizations in North, South, and Central America (Common Frontiers 1999). In this context, a 130  decision to withdrawfrombad faith negotiations can be constructed as an act of resistance rather than a defeat, signaling to the public that trade bureaucrats are unwilling to genuinely entertain the prospect of moving towards a more balanced form of integration. A final reason for optimism regarding the prospect of securing the (eventual) implementation of a more broadly defined and differently located SC is the potential of this instrument to (re)connect the campaigns of activists who support the development of an alternative model of liberalization. By providing resources to respondeat least in part) to many of the concerns raised by clause commentators, a redefined SC has greater potential to serve as a foundation for broad-based cooperative action among trade activists.  As noted above, a  reevaluation of the breadth and location of the SC would clearly speak to the inadequacy of the narrow labour content of existing clause proposals, as well as to concerns about the location of the clause within TIAs.  In addition to these benefits, efforts to create a SC that does not  reinforce existing lines of inequality in international trade pave the way for more adequate consideration of the concerns raised by many developing countries. To begin with, having a SC that is separate from TIAs will relocate considerations of economic and social justice outside of what many Southern commentators characterize as the discriminatory structures and process of the WTO. The process of constructing a SC that is independent of existing trade instruments will hopefully be completed in a manner that avoids many of the problems historically associated with the operation of trade and economic institutions, although this will doubtless be a complicated and difficult endeavour. The inclusion of a broad range of issues within the SC will help to ensure that the clause is not simply used as a disciplinary measure against the South to the advantage of Northern producers.  Under a broader SC, developed countries will be confronted with the task of  addressing a wide range of interconnected social and economic issues that, given their diversity, 131  will not as easily be turned to the advantage of some parties at the expense of others. More specifically, the fact that a redefined SC will not address only the rights of working people rights that Northern countries are already able to protect to a greater degree - will help head off unilateral use of the SC against the South. When the SC is not defined solely in terms of an issue with respect to which the developed world enjoys an advantage, it will be more difficult for Northern states to use the SC to target conditions in the developing world while disregarding their own social failings. At the same time, the fact that the reformulation of the SC is to be guided by the principle that existing lines of inequality in the international trade system must not be re-entrenched prioritizes consideration of any disadvantage incurred by developing countries. Locating inequality at the forefront of clause evaluation will render it more difficult for the SC to be used in an unbalanced manner against Southern producers. The potential for greater cooperative action on the part of commentators who support the development of an alternative trade agenda provides reason to be optimistic about the prospect of securing the implementation of a redefined SC because of the greater scope for advocacy that such a platform would provide. If the SC could offer proponents of a new model of integration reason to cooperate around the negotiation of a single strategy, pressure for change would not only be more focused, but also better able to resist pro-free traders attempts to employ the kind of 'divide and conquer' strategies referred to above.  Of course, the potential for forging a  common platform is not meant to imply that all dissension among supporters of an alternative model of integration will be resolved simply by developing a broader and differently located SC. The anticipated outcome of a project like the reformulation of the SC should not be the elimination of all disagreement, but the bringing together of trade commentators to participate in the process of arriving at a strategy that could be more widely accepted. Integral to the success of this process is explicit consideration of existing lines of inequality in international trade, the  132  broad range of social and economic issues on which trade impacts, and the location of strategies within the context of the trade system.  ENDNOTES  Professor Paul Bowles clearly articulates this trend i n an article concerning the inclusion o f labour rights i n negotiations around the Asia-Pacific E c o n o m i c Cooperation ( A P E C ) . In this context, Bowles points out how the opposition o f some developing country A P E C members to trade-linked workers' rights has prevented this issue from being placed on the agenda for discussion: Rather than devise ways to ensure that developing country exports are fairly treated, A P E C ' s response has been to refuse to discuss labour rights and thereby to sacrifice workers', interests. This suits many A P E C members who see discussion of labour rights as unjustified interference in their internal affairs. Thus the A P E C agenda is dominated by 'safe' issues such as the harmonization o f product standards and customs procedures and of expedited business visas (Vancouver Sun, Aug. 7/97, D2). This discussion is not meant to downplay the important role that corporations play in driving economic development and. job creation, but.it does, challenge the. ability o f corporations to dictate the terms according to w h i c h these contributions are made, and the reasons for w h i c h they w i l l cease to be made. See for example, 'Pettigrew rejects N A F T A dispute m o d e l ' Globe and Mail, Thursday A p r i l 6, 2000, B 5 ; 'Economist guru blasts system' Globe and Mail, M o n d a y A p r i l 17, 2000, B10. 1  2  3  133  APPENDIX  Documents obtainedfromCLC archives (in chronological order) White, Robert. 1999a. Letter to Sergio Marchi, 2 pp. 1999b. Submission by the Canadian Labour Congress to the House of Commons Standing Committee on Foreign Affairs and International Trade Regarding the Pending World Trade Organization (WTO) Negotiations, 16 pp. Jackson, Andrew. 1999c. From Leaps of Faith to Lapses of Logic: Assessing a Decade of Free Trade, 15 pp. 1999d. Brief on the Free Trade Area of the Americas (FTAA) to the Sub-Committee on Trade and Trade Disputes of the Standing Committee on Foreign Affairs and International Trade, 18 pp. White, Robert. 1998a. Presentation to the B.C. Hearings on the Multilateral Agreement on Investment, 10 pp. White, Robert. 1998b. Letter to Marjorie Griffin Cohen, 3 pp. 1998c. MAI Alert #5. -—  1998d. MAI Alert #1.  Jackson, Andrew and Bob Baldwin. 1997a. The Lessons of Free Trade: A View From Canadian Labour, 22 pp. Jackson, Andrew. 1997b. Impacts of the FT A and NAFTA on Canadian Labour Markets and Labour and Social Standards. Research paper #7, 32 pp. 1997c. "The People vs. NAFTA." The Morning NAFTA, issue, no. 10,8 pp. 1997d. Statement by the Canadian Labour Congress to the House of Commons SubCommittee on International Trade, Trade Disputes, and Investment Regarding the Multilateral Agreement on Investment, 11 pp. 1997e. The Multilateral Agreement On Investment - A Preliminary Critical Analysis, 11 pp. 1996a. Social Dimensions of North American Economic Integration. Impacts on Working People and Emerging Responses, variously paged. 1995a. CLC's Views on NAFTA and its Expansion in the Hemisphere.  134  1995b. "No standards, no teeth." The morning NAFTA issue no. 1, p. 1. White, Robert. 1995c. Letter to Roy MacLaren, 3 pp. 1995d. The Mexican Crisis and it's Implications for Canadian Workers, pp. 9-15. White, Robert. 1993a. NAFTA Side-Deal Changes Nothing For Workers, 3 pp. 1993b. Manufacturing Jobs Vulnerable To Relocation Under NAFTA, 5 pp. 1993c. Statement by the Canadian Labour Congress to the Ontario Cabinet Committee on the North American Free Trade Agreement, 8 pp. 1993d. Submission By The Canadian Labour Congress on the North American Free Trade Agreement to the Sub-Committee on International Trade of the Standing Committee on External Affairs and International Trade, 38 pp. White, Robert. 1992a. Letter to Brian Mulroney, 4 pp. 1992b. The Facts on  Free'Trade.  1992c. "CLC Statement on NAFTA." labour's world, September, pp. 1 -2. 1992d. Trade fast facts. Trade ties with the United States, 9 pp. 1992e. Canadian Labour Congress Briefing Notes on the North American Free Trade Agreement, 16 pp. 1991a. Free Trade Briefing Document. Two Years Under Free Trade: An Assessment (Part I), 6 pp. 1991b. Free Trade Briefing Document. Ten Reasons Why Canada Should Not Enter Into A Trilateral Free Trade Agreement With The United States and Mexico, pp. 39-41. Campbell, Bruce. 1991c. Free Trade Briefing Document. CLC researchers visit Maqiladora. 1990a. Free Trade Briefing Document. 1990b. Free Briefing Document. 1990c. Submission by the Canadian Labour Congress to the Ryoal Commission on Electoral Reform, 30 pp. Campbell, Bruce. 1990d. Discussion Paper (Revised). Why the Canadian Labour Movement Cannot Support an Economic Integration Agreement (a.k.a. free trade') with the United States and Mexico, 5 pp.  135  1990e. Preliminary Submission. Brief to the House of Commons Standing Committee on External Affairs and International Trade. Canada's Role in U.S.-Mexico Free Trade Negotiations, 21 pp. 1990f. Transcription of CLC presentation to the House of Commons Standing Committee on External Affairs and International Trade, Friday September 28, 59:4-59:7.  Hodgson, Derek. 1988. "Mulroney trade deal (It's no deal)." Canadian Labour vol.313, no. 1, pp. 11 and 13. 1987a. "Free trade with U.S. threatens Canada's future - CLC." Canadian Labour vol. 32, no. 4, p.7. 1987b. "Labour mobilizes againstfreetrade." Canadian Labour vol. 32, no. 5, p. 17.  Bauer, Charles. 1987c. "Shamrock Summit. A Weekend of Dissent." Canadian Labour vol. 32, no. 5, pp. 12-3.  136  REFERENCES  Alternatives for the Americas. Building a People's Hemispheric Agreement. 1999. Ottawa and Toronto: Canadian Centre for Policy Alternatives and Common Frontiers, 94 pp. Alston, Philip. 1982. "International Trade as an Instrument of Positive Human Rights Policy." Human Rights Quarterly 8, no. 1: 155-183. Armstrong, Pat. 1997. "Restructuring Public and Private: Women's Paid and Unpaid Work." In Challenging the Public/Private Divide. Feminism, Law, and Public Policy. Ed. Susan B. Boyd. Toronto: University of Toronto Press, 37-61. 1996. "The Feminization of the Labour Force: Harmonizing Down in a Global Economy." In Rethinking Restructuring. Gender and Change in Canada. Ed. Isabella Bakker. Toronto: University of Toronto Press, 29-54. Bakan, Joel. 1997. Just Words. Constitutional Rights and Social Wrongs. Toronto: University of Toronto Press, 230 pp. Bakker, Isabella. 1996. 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"No standards, no teeth." The morning NAFTA issue no. 1, p. 1. 1995d. The Mexican Crisis and it's Implications for Canadian Workers, pp. 9-15. 1993b. Manufacturing Jobs Vulnerable To Relocation Under NAFTA, 5 pp. 1993c. Statement by the Canadian Labour Congress to the Ontario Cabinet Committee on the North American Free Trade Agreement, 8 pp. 138  1993d. Submission By The Canadian Labour Congress on the North American Free Trade Agreement to the Sub-Committee on International Trade of the Standing Committee on External Affairs and International Trade, 38 pp. 1992b. The Facts on  Free'Trade.  1992c. "CLC Statement on NAFTA." labour's world, September, pp. 1-2. 1992d. Trade fast facts. Trade ties with the United States, 9 pp. 1992e. Canadian Labour Congress Briefing Notes on the North American Free Trade Agreement, 16 pp. 1991a. Free Trade Briefing Document. Two Years Under Free Trade: An Assessment (Part I), 6 pp. 1991b. Free Trade Briefing Document. 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