This is a guest post from University of Miami law prof Kathleen Claussen:
The legal scrub of the labor chapter of the USMCA did not yield many changes since the publication of the draft text two months ago – a few “any”s became “a”s and a few “agree”s became “decide”s, among similarly small edits. Simon has already noted what is perhaps the most substantive modification – the addition of a footnote and re-wording of the sex-based discrimination provision. But it is again outside the labor chapter where we find a significant labor-related change. That change is the termination of the labor side agreement to the NAFTA 1994, the North American Agreement on Labor Cooperation (the NAALC), announced in the one-page Protocol to which the USMCA is attached.
The end of the NAALC should come as no surprise. Most elements of the NAALC are incorporated in the USMCA labor chapter and updated according to the bipartisan May 10, 2007 deal. An important contribution of the NAALC had been its creation of an independent secretariat to study and report on labor issues among the three countries. The secretariat stopped functioning and eventually closed in 2010. Labor organizations have continued to submit public communications raising labor concerns under the NAALC to the various country contact points, even if those communications are not always made public. In short, the NAALC has languished in recent years. It was time for it to be brought in line with current practice at a minimum.
By contrast, the environment side agreement to the NAFTA 1994, the North American Agreement on Environmental Cooperation (the NAAEC), will be rejuvenated. Although the NAAEC itself will disappear, it has been updated to comprise both a standardized chapter in the main text and a new side agreement. Article 24.25 of the USMCA announces the signing of the side agreement called the Agreement on Environmental Cooperation. The Article gives it the acronym of ECA, as has been done in the past such as in the side environmental cooperation agreement to the CAFTA-DR. The ECA is not on the USMCA page on the USTR website, however. Instead, to locate the text, head over to the State Department website or to the EPA website. (In both instances, although seemingly a technical glitch, the PDF file name for the ECA text suggests some linkage with TPP.) You can also find a press release on the website for the Commission for Environmental Cooperation (CEC), the still-standing institution created under the original NAAEC that the ECA preserves.
The ECA indicates that it replaces the NAAEC and enters into force with the entry into force of the USMCA. This should provide some continuity to the rather busy work of the CEC. The ECA maintains the CEC’s institutional structure including a secretariat, despite that the United States had previously proposed rolling back funding for the CEC and its secretariat (and neither other party has been particularly supportive).
So it would appear that environmental advocates did well at least with shaping the institutional future for environmental cooperation under the USMCA framework. Addressing labor grievances looks notably harder by comparison.
