The Likely Impact of the U.S. - Colombia Trade Promotion Agreement on Colombian Workers

8/9/2019 The Likely Impact of the U.S. - Colombia Trade Promotion Agreement on Colombian Workers

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e Likely

Impact of theU.S.ColombiaTrade Promotion

Agreement onColombian

Workers

Lauren Damme


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About Dmos

Dmos is a non-partisan public policy research and advocacy organization. Headquartered in New York City, Dmos wowith advocates and policymakers around the country in pursuit o our overarching goals: a more equitable economy; arant and inclusive democracy; an empowered public sector that works or the common good; and responsible U.S. enga

ment in an interdependent world.

Dmos was ounded in 2000.

Miles S. Rapoport, Presidentamara Draut, Vice President o Policy and Programs

Author bio

Lauren Damme is a Policy Advisor to the International Program at Dmos. She is also a Policy Analyst in the EconomGrowth and Next Social Contract programs at the New America Foundation.

boArD of Directors

copyright

2010 Dmos: A Network or Ideas & Action

Current Members

tephen Heintz, Board Chairresident, Rockeeller Brothers Fund

Miles Rapoport, President

Marc C. Alexanderroessor o Law, Seton Hall University

en BinswangerChie Operating Ocer, Te Case Foundation

Raj DateChairman & Executive Director, Cambridge Winter

Christine Chentrategic Alliances USA

Amy HanauerFounding Executive Director, Policy Matters Ohio

ang Jiartner, White & Case LLP

Rev. Janet McCune Edwardsresbyterian Minister

Clarissa Martinez DeCastroDirector o Immigration & National Campaigns,National Council o La Raza

Arnie MillerFounder, Isaacson Miller

Wendy Purieoyresident, Public Education Network

Amelia Warren yagiCo-Founder & EVP/COO, Te Business alent Group

Ruth WoodenPresident, Public Agenda

Members, Past & On Leave

President Barack Obama

om Campbell

Juan Figeroa

Robert Franklin

Charles Halpern

Sara Horowitz

Van Jones

Eric Liu

Spencer Overton

Robert Reich

David Skaggs

Linda arr-Whelan

Ernest ollerson

Aliations are listed or identication purposes.

As with all Dmos publications, the views expressed in this repodo not necessarily reect the views o the Dmos Board o ruste


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tAble of contents

Summary 1

Te Role of Labor in Colombias Development 2

Legal overview: Colombia Labor Law

Law: Freedom o Association, the Right to Strike,and the Right to Collective Bargaining 5

Reality: Freedom o Association, the Right to Strike,and the Right to Collective Bargaining 6

Law: Collective Pacts 11

Reality: Collective Pacts 11

Law: Associative Work Cooperatives 11

Reality: Associative Work Cooperatives 12

Law: Elimination o Discrimination in Employment and Occupation 13

Reality: Elimination o Discrimination in Employment and Occupation 13

Labor Rights and the Uribe Administration 14

Te U.S.Colombia Free rade Agreement: Labor 17

Summary o Chapter 17: Labor 17

Labor Impacts and the FA: Are the Labor Provisions Strong Enough? 18

Te FA and U.S. Leverage over Colombias Labor Situation 20

Policy Recommendations

Conclusion 26

List of Sources

Endnotes

Contact 35


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Te Likely Impact o the U.S.Colombia rade Promotion Agreement on Colombian Workers

summAry

Tis brie explores the impacts o the trade promotion agreement (reerred to as the FA) be-tween the U.S. and Colombia on labor and labor rights in Colombia and oers policy recommen-dations to Congress and the Administration. Te report rst provides an overview o the labor

situation in Colombia, drawing upon interviews with NGOs, advocacy organizations, academicexperts, government ocials, and labor representatives in both Colombia and the United States.Second, it provides an analysis o trade promotion agreement as it relates to Colombias labor sit-uation and explores the impacts o the FA upon dierent social and economic sectors. Finally,the brieng provides guidance or how Congress and the Obama Administration should go or-

ward to ensure that the trade agreement with Colombia improves, rather than erodes, labor stan-dards and worker rights in Colombia.

As Congress considers the ratication o the U.S.-Colombia rade Promotion Agreement, Co-lombias labor situation has become the central obstacle to its passage. While most analysts agreethat the FA is relatively unimportant to the U.S. and will have minimal to no eect on out-

put or employment,1 it could have strong eects on Colombian workers. Moreover, there is con-cern about Colombias commitment and ability to uphold the labor standards in the FA givenits poor history o respecting labor rights and unionism.

Proponents o the FA have high hopes or how it might positively aect Colombias economyand political situation, as well as Colombian workers. Te preamble to the United States-Colom-bia FA, signed February 27, 2006, states that the pact aims to:

Promote broad-based economic development in order to reduce poverty and generateopportunities or sustainable economic alternatives to drug-crop production;

Create new employment opportunities and improve labor conditions and living stan-dards in their respective territories;

Protect, enhance, and enorce basic workers rights, strengthen their cooperation onlabor matters, and build on their respective international commitments on labor mat-ters.

Will the FA live up to these labor goals and promote broader development in Colombia? Tisbrie attempts to answer these questions. First, we examine the role o labor in Colombias de-

velopment. Second, we provide an overview o Colombian labor law and its current implemen-tation. Tird, we analyze the labor chapter o the FA and its probable impacts on Colombianlabor. Last, given this analysis, we oer a set o policy recommendations or Congress to consid-

er in regard to ratication o the FA and steps that could improve the situation or Colombianworkers.


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the role of lAbor in colombiAs Development

Broadly-based economic development improves the livelihoods o people throughout a society. Ina labor-rich and capital-poor country like Colombia, broad development must be based upon thecountrys ability to involve and utilize its greatest resource: labor. An estimated 60 percent o Co-

lombias 18.2 million workers work in the inormal sector, and most o these receive less than theminimum wage.2 O the 47 percent o Colombian workers who do receive salaries, only 23 per-cent earn higher than the minimum wage, work under the maximum limit o 48 hours per week,and are aliated with a social security, health, and pension program.3 In 2009, about 4.5 percento the workorce was unionized.4

Colombia also suers rom high levels o inequality in the distribution o both wealth and land.Te poorest 20 percent o the population accounts or less than three percent o earnings, whilethe richest 20 percent takes home about 64 percent o the national income and the richest 10 per-cent take home ully 50 percent o earnings.5 Land distribution is extremely important in a soci-ety in which 3.4 million people work on small, isolated land holdings and produce 40 percent o

the ood consumed in the country. However, just 0.5 percent o landowners possess 60 percent oColombias land.6

All these conditions militate against broad based economic development in Colombia. Currently,a majority o its 18.2 million working people ace signicant obstacles to sharing the ruits o anyprosperity and achieving economic security.

Raising and enorcing labor standards helps to level the bargaining power o employers and em-ployees, ensuring that the benets o economic growth are more widely shared. Respect or suchstandards also accomplishes other development goals. For instance, reducing the worst orms ochild labor helps ensure that more children get an education instead o going to work, which leads

to a more skilled workorce and better uture or a nation. Likewise, reducing discrimination inemployment helps ensure more women and ethnic minorities become a part o the workorce,

which allows developing countries to utilize more o their human capital and increase social in-clusion, leading to greater political stability.

Respect or the right to orm unions and collectively bargain is especially critical in advancing de-velopment. Tese rights promote better working conditions, less wage inequality, less exploitationo vulnerable workers, and more investment in the skills o workers, enabling them to compete inthe global marketplace. Te contribution o trade unions to the reduction in wage inequality isa well-established empirical nding, noted a 2008 report by the International Labor Organiza-tion (ILO). Recent economic studies have increasingly recognized that collective bargaining hasa positive eect on wages without much negative impact on the overall employment or econom-ic perormances.7 Other research has demonstrated the linkage between unionization and skillsdevelopment and increased wages and benets.8

Te United States has a strong interest in raising labor standards worldwide. Nations that expe-rience more growth and widely shared prosperity, in part thanks to higher labor standards, canbecome bigger markets or U.S. exports and investments, and can become more democratic andpolitically stable. Higher labor standards abroad also help reduce the degree to which oreign

workers can undercut workers in the United States. Tis wont matter in regard to goods and ser-vices where disparities in labor costs are so vast that it makes no sense to keep jobs in the United


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States. But it will make a dierence i the benets o outsourcing are more marginal. Tere is lessincentive to move jobs overseas i corporations are going to encounter the same set o labor regu-lations that exist in the United States, such as minimum wage laws, workplace health and saetyprotections, unemployment insurance, workmens compensation, and required contributions intosocial insurance programs that provide health and retirement security.

o both support development and allow U.S. workers to reap the rewards o higher global laborstandards, the U.S. government should push its trading partners to raise their labor standardsand also assist them in the implementation o labor laws. In the case o Colombia, strengthen-ing labor law enorcement is especially important due to 1) the countrys large, vulnerable work-ing population, and 2) the countrys poor record in protecting both human and labor rights.Ideally, a trade agreement with the United States would help to create more shared prosperityby reducing the obstacles to economic security that Colombian workers ace. Tis could be thecase i the FA did, in act, serve as a lever or catalyst to help raise labor standards and ensurebetter enorcement o such standards.

Te U.S. seems to be in an especially strong position to infuence Colombias actions due to Co-lombias greater relative economic dependence upon the U.S. or trade: the U.S. is Colombias

largest trading partner, importing $13.09 billion in goods rom Colombia in 2008 (a 30 percentincrease rom 2007, although the recession has shrunk imports about 20 percent), whilst Colom-bia was the 29th largest U.S. import supplier, accounting or less than one percent o U.S. importsin 2008.9 In addition, Colombia is one o the oremost recipients o U.S. aid, receiving $663 mil-lion in grant aid in 2009, contributing to an estimated $7.9 billion in aid rom 1996 -2010. 10

Will the passage o the FA increase or decrease U.S. capacity to infuence Colombias labor sit-uation? Te next section gives a brie outline o Colombias current ramework o labor law. Basedupon a series o interviews with Colombian rights activists, unionists, and government ocials,the section attempts to shed light on the dierences between theory and reality in Colombian la-bor rights today, ocusing especially the state o syndicalism in Colombia.


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4

legAl overview: colombiA lAbor lAw

As shown below in Figure 1, Colombia has ratied the eight core ILO conventions on laborrights outlined above which are automatically incorporated into the domestic legislation.11 In ad-dition, Colombias Substantive Labor Code (Cdigo Sustantivo del rabajo), provides urther de-

tail on labor legislation.

Figure 1:List o International Human and Labor Rights Conventions Ratied by Colombia

UN covenants on humanand worker rights

International Covenant on Economic, Social and Cultural Rights, ICE-SCR

International Convention on the Elimination o All Forms o Racial Dis-crimination, CERD

International Covenant on Civil and Political Rights, ICCPR

Convention on the Elimination o All Forms o Discrimination AgainstWomen, CEDAW

Convention on the Rights o the Child, CRC

Optional Protocol to the Convention on the Rights o the Child on the in-volvement o children in armed confict

ILO Fundamental Con-

ventions from the 1998Declaration of Funda-mental Principles andRights at Work

Convention No. 29 on Forced Labor

Convention No. 87 on Freedom o Association and Protection o the Rightto Organize

Convention No. 98 on the Right to Organize and Collective Bargaining

Convention No. 100 on Equal Remuneration

Convention No. 105 on the Abolition o Forced Labor

Convention No. 111 on Discrimination (Employment and Occupation)

Convention No. 138 on the Minimum Age or Admission to Employment

Convention No. 182 on the Worst Forms o Child Labor

None o these steps toward labor protections cover workers in the inormal economy: an estimat-ed 60 percent o the Colombian workorce. Tis legislation and the Substantive Labor Code ap-ply only to workers with an ocial contract o employment, leaving independent contractors, thesel-employed, and inormal sector workers unprotected and without rights.

In 2002, in support o a request or an International Monetary Fund stand-by loan o $2.1 bil-lion, the Colombian government undertook signicant and controversial pension and labor leg-


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islation reorms with the aim o reducing the cost o labor and thus increasing employment inthe ormal sector. Tese included reorm o the pension scheme to increase minimum contribu-tion periods, push back the age o retirement, and increase the contribution rate o workers. Cit-ing the infexibility o the ormal labor sector and high labor costs as the reasons or Colombiaslarge inormal sector, the reorm, which was eventually passed as the controversial Law 789 o2002, extended daytime working hours, reduced overtime payments or labor, and decreased sev-

erance payments.12

Current President Alvaro Uribe also undertook public sector reorm to reduce spending and debtat the behest o the IMF. As a result, the Ministry o Labor and Social Security and the Ministryo Health were downsized and merged to create the Ministry o Social Protection (MPS), a de-cision that has severely weakened the ability o the government to protect workers rights.13 MPSis now the lead ministry in the administration and enorcement o labor legislation. According tothe U.S. Department o Labor (2008), at the end o 2006, MPS conducted 29,267 administrativeinvestigations, sanctioning 2,904 businesses (about 10 percent o those inspected) and imposednes o 7.3 billion pesos, or $3.6 million USD (about $1240 per business at the September 2009exchange rate). Te ecacy o these nes in enorcing labor legislation is unknown. However, ac-

cording to the AFL-CIO, the MPS currently has 273 inspectors or all o Colombias 18.2 mil-lion strong workorce, meaning that each inspector is responsible or almost 67,000 workers.14

Te rest o this section provides a brie overview o the Colombian legal ramework in two o theour core areas: 1) Freedom o association and recognition o the right to collective bargaining,and 2) elimination o discrimination in employment and occupation. Due to the scope o thisbrieng, the serious issues o human tracking or Colombias widespread problems with exploi-tation o child labor and orced labor will not be addressed.15

Law:

Freedom of Association, the Right to Strike, and the Right to CollectiveBargaining

Te Substantive Labor Code and Constitution recognize the right to orm trade unions and theright to collective bargaining.16 Until 2008, labor unions were subject to the approval o MPSbeore they could legally unction (including strike), and the MPS denied 253 union registra-tions between 2002 and 2008.17 Although the Colombian Supreme Court has divested the MPSo this capacity, regulations implementing the rulings have not yet been put into eect. In addi-tion, employers continue to dispute the registration o the union, violating ILO Conventions 87and 98.18 When a union represents more than one-third o a companys employees, all employeesare covered by collective bargaining agreements, rather than just union members. Te Substan-tive Labor Code expressly prohibits employer attempts to interere in a workers decision to joina trade union, through either discrimination in employment, bribery (including higher wages orother benets), or other types o pressure. It also states that employers cannot dismiss, suspend,or change the working conditions o employees in the process o establishing a trade union, al-though this is not necessarily the case in practice.19

For example, under Law 789 o 2002, a company may divide its production units, prohibiting la-bor relations between the units and thus prohibiting the ormation o a single union, the contin-uation o an existing union, or collective bargaining as a single unit.20 Te minimum number o25 employees needed to register a union is also prohibitive to the reedom o association and right


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to collective bargaining o Colombian workers, as most workers are situated in employment en-vironments with less than 10 coworkers, and i they are not, the company can divide into small-er units, as described. Employers also undermine unions and their bargaining power by oeringcertain employees incentives (such as better wages or working conditions) to keep them rom join-ing a union.21

Both the constitution and Substantive Labor Code protect workers right to strike (i they have acontract o employment, as mentioned), but a strike can be declared illegal or a number o rea-sons, in which case the employer can re all workers involved, including union members.22 Forexample, Article 416 o the Labor Code prohibits workers and unions in services deemed essen-tial by the government, or all public services, rom striking or collective bargaining, although theILO CEACR has ound that many o the areas in which strikes are banned are not necessarilyessential.23 For example, in 2005, the government declared a strike by union workers at a state-owned oil company ECOPEROL illegal, leading to the dismissal o 253 union members.24Federations and conederations o trade unions also cannot declare strikes: a regulation the ILOCommittee o Experts on the Application o Conventions and Recommendations (CEACR) hasasked the Colombian government to change.25

I a worker is dismissed as a result o an illegal strike, they can be blacklisted rom employmentin the public sector or 10 to 15 years, a practice the ILOs Committee on Freedom o Associa-tion (CFA) ound to be inconsistent with the principles o reedom o association anda seri-ous threat to trade union rights.26 Te Constitutional Court o Colombia ruled this exception opublic employees rom the right to collective bargaining to be unconstitutional due to Colombiasratication o the ILO conventions (151 and 154) on the right to collective bargaining.27 In Feb-ruary 2009, the Uribe Administration issued Decree 535, which purportedly provides bargainingrights to public sector employees, but only allows or the submission o a respectul request byemployees every two years (concertacin), which the government has no obligation to accept.28

Also in response to the 2005 ruling against Article 416, the government created a tripartite com-mittee (acuerdo tripartito) to create bargaining legislation and to develop methods to combat im-punity in unionist assassinations, and to promote and enorce signed ILO labor conventions. Te

ripartite Committee includes the three biggest labor union ederations (CU, CG, and CC),worker representatives, and government ocials.29

Reality:Freedom of Association, the Right to Strike, and the Right to CollectiveBargaining

I am worried about the deaths o unionists,but I am even more worried about the death o unionism.

Julio Roberto Gmez , CG Secretary General, (Interview, 2009)

Te Secretary General o CG, the second largest union conederation in Colombia, has goodreason to be worried. Violence against unionists is aimed more at erasing gains they have made inprotecting their reedom o association and their right to collective bargaining than at the union-ists themselves.30


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Te State o Unionism

According to the ENS SISLAB (sistema de inormacin laboral y sindical), a department o the la-bor school that compiles and disseminates inormation on Colombias labor system, about 4.5percent o the 18.2 million strong workorce was unionized in 2009, or about 822,000 workers.

Tese workers belong to 2,933 unions.31

Colombian unions have the option o joining one o three union conederations to help consoli-date their bargaining power and expand their voice at national and international levels. Te larg-est ederation is CU (Central Unitaria de rabajadores), representing 527,542 members and 731unions. Te second largest is CG (Conederacin General de rabajo), with 120,329 members and540 unions. Te third is CC (Conederacin de rabajadores de Colombia), with 45,307 membersand 167 unions.32

Te generally weak state o Colombian unions can be attributed to the physical danger o beinga union member, but it is also a result o a private sector that is deeply unriendly to unions. Tegovernment and private sector have supported growth in other orms o employment that under-

mine Colombians rights to association and to collective bargaining, as will be detailed below.

Obstructing Freedom o Association: Violence Against Unionists

Colombians should have the right to organize, and still live

Lisa Haugaard, Latin American Working Group (Interview 2009)

Colombia is well-known or being the most dangerous place in the world or unionistsmoreunionists are killed in Colombia each year than in the rest o the world combined. Unionist assas-

sinations are a serious obstacle to unionists right to live, much less Colombian workers reedomo association and right to collective bargaining. In 2008, o the 76 labor activist murders docu-mented by the 2009 Annual Survey o rade Union Rights Violations, 49 were rom Colombia.

Tis marks a 25 percent increase rom 2007, when 39 were murdered. In 2009, at least 34 laborunionists were assassinated in Colombia.

In the past 23 years, rom January rst, 1986 to August 7th, 2009, 2,704 unionists have beenkilled, or about one unionist murder every three days. In addition, 4,418 union members have re-ceived death threats, 1611 have been orcibly displaced, and at least 10,364 violations against theirlie, liberty, and integrity have been recorded.33

From 2002-2008 (about the Uribe Administrations tenure), the International Conederation oFree rade Unions (ICFU) records that 609 unionists have been killed, compared to 297 inthe rest o the world.34 More precisely, since Uribe came into power on August 7th o 2002, 505unionists have been murdered.35 However, the oten quoted number o more than 2,700 union-ists killed in the past two decades used to directly discredit the Uribe Administration is mislead-ing, as assassinations have decreased by 73 percent since he came into oce (as shown in Figure2). Colombian unionist assassinations have also become a smaller contribution to worldwide mur-ders o unionists, rom 83 percent o assassinations in 2001 to 65 percent in 2008, and the gen-eral trend o murders has declined (see Figure 2 on page 8). Still, Figure 2 shows a trend o set-backs or every gain.


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Still, Figure 2 shows a trend o setbacks or every gain, and alling assassination numbers mayonly mask increases in other serious violations o unionists rights, such as the more low proledeath threats. Many Colombian interviewees told Dmos that the negative international public-ity that stemmed rom high-prole unionist killings has led to the use o more shrewd methodsor intimidation o those who deend both labor and human rights. Tese methods are oten moreeective precisely because they are relatively lower prole than murders. Te composition o hu-man rights violations762 in 2008 aloneare shown in Figure 3 below.

Figure 3: Human Rights Violations Against Colombian Unionists, 2007-2008

ype o violation 2007 2008

Treats 246 497

Forced displacement 101 154

Homicides 39 49

Arbitrary detention 19 26

Harassment 16 19Attack with or without injuries 12 8

Disappearance 2 5

orture 2 3

Illegal raid 4 1

otal 441 762

Source: Sinderh database, Escuela Nacional Sindical, Cuaderno de Derechos Humanos no. 21, 2009.

Figure 2: racing Colombian Unionist Murders, 2001-2008

0

50

100

150

200

250

20082007200620052004200320022001

Worldwide Unionist

Assassinations

Colombian Unionist

Assassinations

Source: Compiled rom International Conederation o Free rade Unions (ICFU) annual surveys o violationso trade union rights, 20022009.


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In the interviews Dmos conducted with unionists, academics, senators, and human rights groupsin Bogota rom 29th June to 4th July 2009, every interviewee could cite examples o intimidation

via death threats, threats to loved ones, assassination attempts, orced displacement (exile), wire-tapping, and/or physical ollowing o amily and children. Many o these numbers do not showup on the requently-quoted assassination statistics but refect the campaign o ear that helps tosuppress union activity.

Who exactly is responsible or these violations? Te lack o eective investigation means that onlyestimates are possible. From 1986August 2009, the alleged perpetrator o unionist murders isknown in only 598 o the 2,704 murders that have been committed, or in only 22 percent o cases.

In those 598 cases, the ENS estimatesthat paramilitaries are the alleged per-petrators o 65 percent o unionist mur-ders, while 23.4 percent are committedby guerrillas and 8.2 percent by public(state) orces.36 Figure 4 shows the 2008ENS estimate o those responsible or

the 418 rights violations against union-ists in the year 2007.

Most assume the government is behindmuch o the violence and intimidationagainst unionists, acting as intellectu-al authors even i the violations are car-ried out by paramilitary groups, a be-lie that has been given increasing creditas more scandals involving members othe Uribe party and their ties to para-military groups (known as parapoli-tics) have come to light, a situation ad-dressed urther in the Labor Rights andthe Uribe Administration section be-low.

Te state has been directly connectedwith extra-judicial killings o 49 union-ists since 1986, most o which have oc-curred during the Uribe administration.

In each case, the unionists were subject-ed to prior human rights violations bythe state in conjunction with paramili-tary groups and then presented as guer-rillas or civilians killed in combat.37

Figure 5 goes on to compare the changein crime authorship in years 2005-2007.At rst glance, Figure 5 would appearto show a decrease in state and paramil-itary actions against unionists. Howev-

Figure 4:Who is Committing Crimes Against Unionists? 2007

State Actors, 27

Violations, 9%

Paramilitaries, 38

Violations, 9%

Guerillas, 11

Violations, 3%

Unknown, 342

Violations, 82%

Source:EscuelaNacional Sindical. 2007 report on human rights violationsagainst Colombia unionists, 2008.

Figure 5:Who is Committing Crimes Against Unionists?2005-2007

348

2005 2006 2007

379

418

Unknown

State Actors

Paramilitaries

Guerillas

Sources: EscuelaNacional Sindical, Inorme sobre la Violacin a los DerechosHumanos de los y las Sindicalistas Colombianos en el Ao 2005.EscuelaNacio-

nal Sindical. Report on human rights violations against Colombia unionists,2007.


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0

er, the number o violations in which the perpetrator is unknown has increased in recent years,as has the number o overall human rights violations against unionists. Tus it may be that per-petrators are improving their ability to commit these crimes anonymously, making accusationsmore dicult or human rights deenders. Aside rom the very real threat o violence, the per-sonal costs o being a unionist run deeply through daily lie. Tey are publicly and privately stig-matized by the government, being labeled as members o guerrilla groups, enemies o the state,

or communists. Tis can then lead to being targeted or murder by paramilitaries aliated withgovernment ocials or the Colombian military itsel.38

When asked about his security situation and its eects on everyday lie, arcisio Mora Godoy,the president o CU, the largest Colombian labor ederation, stated that My mobile phone istapped. Te government listens to everything I say. I I tell someone, Ill meet you at this placeand time, they know. So I ask you, do you want to invite me to your house?

Unionists thereore ace obstacles to their work and lives on several ronts. According to the Sol-idarity Center, Selective and systematic violence against union leaders and members reinorcesanti-union strategies used by private employers and the Colombian state, thus merging govern-

ment repression with anti-union discrimination.39 Te unknown actor o violations o union-ists human rights is only made possible by the extraordinary levels o impunity or these crimes.

Impunity

Te largest single obstacle to worker rights in Colombia today is the climate o violencewith impunity, since the right to live is a undamental prerequisite or the exercise o anyother right.

Te Solidarity Center

Violence against unionists will continue until aggressors are held accountable or their actions.A study o the courts system nationwide has concluded that the 111 sentences (reerring to 118unionist deaths) that have convicted the deendants o homicide lead to a 95.6 percent impunityrate or unionist murder in Colombia. Impunity rates or other violations, such as physical attacks,death threats, kidnappings, and orced displacement, range rom about 99 to 100 percent, leadingto an overall impunity rate o 98.3 percent or violence against unionists.40

In mid-2007, under international pressure rom labor and human rights groups and national pres-sure rom an administration keen to sign a trade agreement with the U.S., the Attorney Generalbegan investigating crimes against unionists under a special subunit. Te subunit has not opened

investigations on all o the unionist murders that occur each year, meaning that the judiciary sys-tem alls urther behind each year. In 2009, the ENS reports that one case o the 34 unionist mur-ders is being investigated. In 2008, 49 cases were reported to be closed, but 49 unionist assassina-tions occurred, meaning that no net progress was made.41

However, o the 2,704 unionists killed since 1986, the Attorney General recognizes only 1,354cases and in July 2009 had only 1.119 physical records, meaning that, at best, the subunit is inves-tigating only about 40 percent o the cases.42 However, o the 1,546 victims to which these cas-es reer, about 35 percent do not reer to actual unionists, but to other victims, and the ENS esti-mates that the subunit is investigating only about 25 percent o all unionist murders.43


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Te Law on Justice and Peace o 2005 (Ley 975 de 2005 Ley de justicia y paz) was passed to ad-dress the problem o impunity as the government negotiated the demobilization o paramilitarygroups.44 Te law guides the legal process o rapidly trying and sentencing paramilitaries, who re-ceive a maximum o 5 to 8 years imprisonment in exchange or the ull conession o their crimesin reely given conessions (versions libres). However, the laws weak sanctions or the torture, ab-duction and killing o unionists and impossible time in which prosecutors must le suit (60 days)

has led it to be dubbed the Law o Impunity, according to the International Conederation orade Unions.45 Te ICFU states that the law does not guarantee that truth will be established,as it does not address the clarication o the crimes that have been perpetrated, or include anycriticism o the political and intellectual leaders o the groups responsible or the crimes.

Law: Collective Pacts

Union-negotiated collective bargaining agreements apply to all workers in a rm when the unionmembers represent more than one third o the workorce. When a union represents less than athird o a workorce, employers can directly create agreements, or collective pacts ( pactos colec-

tivos), with their employees as an alternative to negotiating a collective bargaining agreementthrough a union. Law 50 o 1990 legalizes collective pacts, which are registered with but notmonitored or controlled by the MPS.46 Because the Substantive Labor Code predominantly reersto collective bargaining agreements as those between unions and employers and because pacts arelegally recognized as separate entities, the legislation protecting the labor rights o workers doesnot apply to employees in collective pacts, a loophole which is used by employers to avoid laborregulations and weaken unions.47

Reality: Collective Pacts

In 2006, collective pacts covered almost 62,000 workers in Colombia.48

But ENS researcher Hec-tor Vasquez nds that in the majority o cases, collective pacts do not represent real negotiationsin which workers can autonomously make requests and elect their representatives, but to the con-trary, are imposed by the company through threats, giving the workers no alternative but to ac-cept the terms o the agreement.49 Tis view is widely acknowledged.

In practice, collective pacts are used as a strategy to undermine union ormation and activity, andto provide incentives or threats to get workers to leave unions. Te ILO CEACR has observedincidences in which businesses, the government, and the judicial system gave preerence to non-unionized workers and collective pacts over agreements with trade unions.50 For example, when

workers in the cut fower industry tried to orm a union in 2001, their company imposed a col-

lective pact and took away benets, transportation expenses, lunch money, seniority and vaca-tion pay rom the unionized workers while they were negotiating a contract, in direct violationo the law.51

Law: Associative Work Cooperatives

Another orm o employment that impedes workers rights to collective bargaining is associativework cooperatives, or CAs (cooperativas de trabajo asociado).52 Tese are groups o ve to twentyemployees who act as both workers and managers to agree upon terms o a contract (work rules,provision o social security, and compensation) with an employer.53 Upon their establishment,


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CAs were not subjected to the labor legislation applicable to dependent workers.54 Tis is be-cause CA associates are contracted as temporary workers to another employer upon whom theyare not deemed dependent. According to these laws, the goal o this orm o employment is togenerate and maintain work or their associates in an autonomous, sel-sustaining, sel-governingmanner. However, the CAs are widely recognized as a vehicle or employers to decrease costs byavoiding labor regulations and their responsibilities to workers.55

In an attempt to address U.S. concerns about Colombias lack o respect or international laborstandards,56 the Colombian government issued Decree 4588 in 2006 (Decreto 4588 de 2006), al-though the decree ails to bring employees in CAs under the protection o the Substantive La-bor Code. In a urther step, in 2008 the government sanctioned Law 1233, which commandedCAs to contribute the equivalent o 9 percent o wages to three social security organizations,including the Colombian Family Welare Institute (Bienestar Familiar) rom January 1, 2009.57However, although employers normally pay two-thirds o these contributions, CA employeesmust pay 100 percent o these contributions. Te ALF-CIO has shown that these contributionscut the earnings o a CA worker earning the minimum wage by 42 percent.58 Tis is a seriousproblem as Colombias minimum wage already does not provide sucient income to purchase

the basic market basket o goods or a amily o our, according to the U.S. State Department.59

Cooperatives are now monitored and controlled by the Superintendent o Economic Solidarity,but they are still solely responsible or the payment o social security (health, pension, and work-mans compensation) o their workers. Small cooperatives bill ing less than 220 million pesos per

year, or just over $110,000 USD, are exempt rom any o these responsibilities.60

Reality: Associative Work Cooperatives

Despite these changes in the regulation o CAs, there is continuing outcry about the labor rights

abuses that have resulted rom the widespread growth in the use o CAs.

CAs have spread rapidly across Colombia, rom 732 covering 55,496 workers in 200061 to over3,000 in 2007, encompassing more than 400,000 workers.62 Te growth o CAs is widely rec-ognized to have had a negative impact on workers rights, limiting their opportunities to ormunions and allowing employers to evade the Labor Code and other legislative protections or

workers by subcontracting workers via the CA. In 2004, 75 percent o cooperatives were oundto have worker abuse or other irregularities by the Colombian Government.63 Te governmenthas nally recognized that CAs constituted a delaborization o the workorce in contradictiono the ILO core conventions.64 Still, the passage o Decree 4588 o 2006 and Law 1233 o 2008does not orce employers to respect labor rights.

However, there is some public opposition to CAs in the Colombian government. Senator Cece-lia Lopez commented that CAs have led to increased inormality o the ormal sector, leading to

jobless growth, and that the vast majority o CAs operate outside o labor law with the approvalo the government, which has no political will to change the situation.65 Te Senator also statedthat altering the laws will not be eective in changing the way cooperatives operate because theCAs are not controlled by the government anyway.


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Law: Elimination of Discrimination in Employment and Occupation

Te Constitution o Colombia obligates the government to promote equality in working oppor-tunities and to protect and support those who are vulnerable, marginalized, or discriminatedagainst on the basis o gender, race, national or amily origin, language, religion, political opin-ion, or philosophy.66 Te Labor Code recognizes the equality o all workers and the right to equal

protections and guarantees by the law.67

Passed in 2006, Law 1010 prohibits employment discrimination, dening it as dierent treatmenton the basis o race, gender, amily or national origin, religious creed, political preerence, so-cial status, or other actors not pertinent to employment.68 Law 1010 (Article 6) urther requiresemployers to prevent and resolve workplace harassment issues through condential mechanisms,although victims can contact local labor inspectorates, police, or municipal representatives. Pen-alties or employment harassment are set by the Disciplinary Code and the Substantive LaborCode, or Law 1010 itsel, which requires nes rom both the harasser and company, in additionto a requirement or the employer to pay 50 percent o medical treatments and other costs result-ing rom the harassment.

Te Colombian legal ramework also contains laws specically protecting women, people withdisabilities, and members o indigenous and Aro-Colombian groups rom discrimination in the

workplace.69 For example, Law 581 o 2001 aims to support the adequate and eective partici-pation o women in decision-making levels in dierent branches o public institutions70 How-ever, the legislation has been criticized or ailing to clearly express the principle o equal remu-neration or work o equal value, which would ensure that work that is dierent but o equal valueis airly remunerated.71

Reality: Elimination of Discrimination in Employment and Occupation

For many Colombian workers, especially women and people o indigenous and Aro-Colombiandescent, daily reality is ar removed rom these legal protections.

Women

According to the U.S. Department o Labor,72 Colombia has made great strides in promotingwomens rights, especially in the realm o employment. However, persistent problems exist. Al-though women constitute 58 percent o the workorce o Colombia,73 they earn 23 to 30 percentless than men74 and are 1.4 to two times more likely than men to be unemployed, depending on

their location.75 Most emale workers are in the inormal economy, and are thus unprotected bylabor law, disproportionately increasing their exposure to poor and unstable working conditions,sexual harassment with impunity, orced pregnancy tests and dismissal due to pregnancy.76

Indigenous and Aro-Colombian Groups

Members o Aro-Colombian and indigenous groups make up over 20 percent o the popula-tion o Colombia.77 Although the government o Colombia does not track labor statistics or in-digenous and Aro-Colombian groups, Te Colombian National Planning Department78 reportsthat Aro-Colombian men earn rom 70 to 80 percent o wages earned by non-Aro-Colombi-


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ans. However, Aro-Colombian civil servants earn only 21 percent o the wages earned by non-Aro-Colombians.79

Labor Rights and the Uribe Administration

One cannot be democratic without recognizing theimportance o unionism.

Senator Jorge Enrique Robledo, (Senate Hearing, 2008)

Uribe is not convinced o the value o human rights.In this sense, he is not a real democrat.

Senator Cecelia Lopez (Interview, 2009)

Te Uribe Administration, which came into power in 2002, has been largely unsupportive olabor rights in avor o more neoliberal economic policies aimed at stimulating the economythrough support o capital-owners, rather than labor. However, as discussed earlier, in Colom-bia, broadly-based economic development is not possible i the working class does not share in theruits o prosperity, which requires protection o their labor rights.

Te Uribe Administration does not have a strong track record in this area. Laws such as 789 o2002 have reduced workers earnings and benets in avor o private sector capital-owners.80 TeUribe Administration has backed Law 50 o 1990, which the Solidarity Center argues trumpsmuch o the core labor legislation because it gives employers broad power to dismiss workers ongrounds o business necessity, weakening labor protections. Government-backed growth o un-regulated CAs has led to devastating social and laboral consequences in Colombia as work-

ers are stripped o their constitutional rights.81

Legal strikes have been militarized by the govern-ment, declared to be against national interests, and discredited as being aliated with FARC,which has lead not only to death threats against strike leaders, but to the murder o unionists as-sociated with the strikes.82 Te ILO CEACR has received testimony rom Colombian unionsagainst the administration on cases o the restructuring, closure, and reopening o public institu-tions, during which the government has red unionized workers and hired non-unionized work-ers in their place with restrictions upon their ability to organize.83

Te Uribe Administration has also publicly stigmatized the work o human and labor rights de-enders. In a letter to the Colombian government, the AFL-CIO condemned a February 2009incident in which President Uribe publicly labeled human and labor rights deenders as the in-

tellectual bloc o FARC. Tis stigmatization condones and encourages the harassment o union-ists by employers and paramilitaries. otal violations against unionists under Uribe are shown onthe next page in Figure 6.


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Figure 6: Violations Against Unionists Under the Uribe Administration,August 7, 2002 August 7, 2009

ype o Violation Number o Cases Percentages

Treats 2,290 58.5%

Homicides 505 12.9%

Forced displacements 444 11.3%

Arbitrary detentions 291 7.4%

Harassment 208 5.3%

Attack with or without injury 71 1.8%

Disappearances 32 .8%

Illegal search 29 .7%

Kidnappings 26 .7%

orture 19 .5%

otal 3,915 100%

Source: Death Isnt Mute. Cuaderno de Derechos Humanos no. 21, Escuela Nacional Sindical, Medellin, Colombia. November2009.

Te Ministry o Social Protection (MSP), which should be saeguarding workers rights, is wide-ly regarded as being underunded and lacking political will, possibly due to the violence and thethreats o dismissal or violence against judicial ocials.84 When Dmos asked an unnamed gov-ernment ocial (Interview, 2009) what the Colombian government needed to better implementlabor laws, he said, nothing, going on to state that there was nothing wrong with the govern-

ments current implementation o labor law, and that in the end, it is up to the private sector toollow laws.

Te administrations attitude towards labor rights has become higher prole with the arrest oJorge Noguera, Uribes ormer chie o DAS, Colombias equivalent o the CIA. DAS was taskedand unded to protect unionists rom paramilitary attacks. Noguera has been arrested as a part oa parapolitics scandal in which over 40 members o Congress have been detained and 83 investi-gated or their collaboration with paramilitary groups.85 Noguera was arrested or allegedly hand-ing a hit list to paramilitary group which included the names o 23 trade unionists, almost allo whom were subsequently killed or orced to fee the country. He has been accused o putting

DAS at the service o the paramilitaries.

86

Uribes DAS has continued to be involved in illegal wiretapping and surveillance scandals in

which detailed les on labor and human rights activists, including sensitive inormation abouttheir DAS-provided protections, have been provided to the DAS departments conducting exten-sive illegal surveillance. Tis surveillance has been ound to cover all those who pose potentialthreats to the Uribe administration, including opposition party members, clergy, human rightsdeenders, journalists, academics, unionists, and union ederations.87

Uribe has so ar managed to escape personal implication in these scandals, but at the same timehas foated a proposal in Congress to allow any politicians implicated in a scandal to avoid prison.


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Indeed, extra-judicial killings o unionists attributable directly to security orces have increased250 percent under Uribe.88 Extra-judicial killings, or alsos positivos, are civilian murders com-mitted by army soldiers in which the army dresses the civilian bodies as combatants to increasetheir body count and demonstrate results.

o address U.S. worries over Colombias respect or labor rights, the government o Colombia has

pointed to the ripartite Committee (Acuerdo ripartito) as evidence o their eorts to promotelabor rights.89 However, the three biggest union ederations have reported that these consultationsdont unction with regularity and are undermined by authorities.90 Due to this hostile climate,the ederations report that they have tried to ocus on areas o common interest which may beeasier to agree upon, but without better results. In reerence to the implementation o the agree-ment, CU, CG, and CC state that an exchange o opinions occurs during the consultations,but that they cannot perceive any government interest in negotiation or compromise. As the Pres-ident o CU, arsicio Mora Godoy, told Dmos, In the meetings, the government asks us what

we need and we tell them what we need. Tey then dismiss us, and change nothing.91

Te Uribe Administration is rightly credited with increasing security and weakening FARC, but

the systematic erosion o social protections has seriously undermined the social movement orrights and unions, without which Colombia cannot promote broad development. Some voices

within the government, such as those o opposition senators Cecelia Lopez and Jorge Robledo,have argued or better social protections and respect or labor rights. However, these senators arecurrently in the minority and can thus eect little change on their own.


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the u.s.colombiA free trADe Agreement: lAbor

Upholding labor standards in any country with a large, unregulated inormal sector is diculteven i the political will to do so exists. But Colombian government attitudes towards labor rightsare indierent at best, and hostile at worst. Dmos was told by one ocial in the Ministry o In-

dustry, rade, and ourism that, it is up to the private sector to implement labor laws in the end,not the government, in response to worries that the FA will drive the Colombian private sec-tor to increase competitiveness by lowering costs through reductions in employees pay and bene-ts. As a response to concerns in the U.S. Congress about Colombian labor issues, the Colombi-an government argued that the FA will lead to increased development in Colombia, which willthen lead to improved human and labor rights.92 Tis seems questionable, since in order or theFA to promote broad-based development in Colombia, development must involve the work-ing class, which will require promoting and protecting labor rights.

Without the political will o the current administration to support labor rights, who will the FAbenet? Does the ree trade agreement present an opportunity to improve labor standards and

respect or labor rights in Colombia? In an attempt to answer these questions, this section rstbriefy outlines the labor provisions in the FA beore analyzing their strengths and weaknesses.It then examines economic and labor impacts o the FA on vulnerable labor sectors o the Co-lombian economy, including workers in rural areas, indigenous and Aro-Colombian workers. Fi-nally, it looks at how enactment o the FA would aect the U.S. capacity to infuence Colom-bias labor standards.

Summary of Chapter 17: Labor

First, Articles 17.1 and 17.2 arm both the U.S. and Colombias commitment to respect core in-

ternational labor standards, as outlined by the ILOs Declaration on Fundamental Principles andRights at Work. Tese include: reedom o association; the eective recognition o the right to col-lective bargaining; the elimination o all orms o compulsory or orced labor; the eective abo-lition o child labor and the worst orms o child labor; and the elimination o discrimination inrespect o employment and occupation. Article 17.3 urther requires that both parties shall notail to enorce labor laws...in a manner aecting trade or investment between the U.S. and Co-lombia. All people with legally recognized interests have access to an independent tribunal toenorce these labor laws (Article 17.4).

A Labor Aairs Council and a contact point within each countrys labor ministry is estab-lished in Article 17.5 to oversee the implementation o Chapter 17 labor provisions. Althoughthese entities may make recommendations (by consensus), they have no ability to enorce deci-sions. Te contact point does, however, acilitate cooperative labor consultations (Article 17.8),

which are a mandatory precursor to solving disagreements via the dispute settlement mecha-nism.

Article 17.6 and Annex 17.6 establish a Labor Cooperation and Capacity Building Mechanism,overseen by the Labor Aairs Council, which promotes cooperation on labor issues related to theILO Declaration, as well as improvement o labor relations and administration, inspectorates,dispute resolution, and working conditions, amongst others. An important nal clause (4) o theannex on public participation includes a requirement or each party to consider the views o its

worker and employer representatives, as well as the views o other members o the public.


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Labor Impacts and the FA: Are the Labor Provisions Strong Enough?

Tere are some key problems that weaken the labor provisions o Chapter 17 in the U.S.-Colom-bia FA. Although the agreement was renegotiated in 2007 make adherence to the ILOs prin-ciples enorceable by the dispute settlement mechanism, these principles are insucient in thecase o Colombia.

Te widespread mistreatment o workers and violence against unionists is well-known, but thelabor provisions have a narrow ocus. Paragraph 1 (a) o Article 17.3 reads, A Party shall not ailto eectively enorce its labor laws () in a manner afecting trade or investment between the Parties() (emphasis added). It remains to be seen how much added legal eort will need to be expend-ed or workers to prove that their violated rights have aected trade or investment with the U.S.

Tese provisions are also narrow because violations reer only to employer-employee relations.However, it is known that much o the violence committed against workers and unionists in Co-lombia is perpetrated by paramilitaries and other groups considered separate to Colombian em-ployers or government, meaning that most rights inractions will not all under the agreement.

Tis separation o government and employers rom paramilitary groups is not necessarily reality,as revealed by the ongoing scandals exposing close ties between paramilitaries and the Colom-bian congress.

Te FA also commits the U.S. and Colombia to provide air, equitable, and transparent do-mestic tribunals or the enorcement o labor laws.99 In a country with a 97 percent rate o impu-nity or unionist murders, much less that o other labor law violations, it seems unlikely that sucha narrowly-applicable labor provision will change conditions or workers in Colombia: the poortreatment o whom is a major point o contention in U.S. Congress over the FA.

Te other issue with the enorcement provision o Chapter 17 (Article 17.3) is that it opens a win-

dow or the Colombian government to decrease overall labor standards. In Article 17.8, the FAexplicitly states that the setting o standards and levels in respect o minimum wages by eachParty shall not be subject to obligations under this Chapter. Each Partys obligations under thisChapter pertain to enorcing the level o the general minimum wage established by that Party.Combined with the narrow range o enorcement, these clauses have been interpreted to open the

way or decreasing overall labor standards, such as minimum wage.100 In other words, althoughdecreasing salaries or specic sectors can be considered a orm o anti-competitive behavior, thegovernment may decrease the general Colombian minimum wage.

Lastly, a requently-cited problem or Colombian workers is the anti-unionist sentiment o theUribe Administration. Article 17.5 (paragraph 7) allows or the creation o a national labor advi-sory or consultative committee comprising representatives o its labor and business organizationsbut does not require that the views o labor are heard or considered.

Rural Labor Impacts

Colombia has a rural population o over 11 million peoplealmost 25 percent o Colombiaspopulationand about two-thirds live in poverty.101 According to Oxam, these small armerscurrently supply over 40 percent o domestic ood consumption, and are about 90 percent o Co-lombias agricultural producers. Agricultural employment accounts or over 20 percent o Colom-


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bias total employment, and generates 8.3 percent o Colombias GDP.102 Agriculture and smallarmers thus play a major role in rural employment.

Colombia has a price band system through which it smoothes fuctuations in the prices o sta-ple oods and ensures base prices or domestic producers. It also has a Public Mechanism or theAdministration o Quotas, which also encourages importers to purchase rom domestic produc-

ers. However, under the FA, U.S. agricultural goods will no longer be subject to either system,and the U.S. will be granted tari-ree quotas that oten exceed past total imports o the goods.Tis has led to worries that heavily-subsidized U.S. agricultural products will food the Colom-bian market and destroy domestic production. In addition, rural producers are unhappy that they

were not consulted during the negotiation o the FA, a breach o ILO Convention 169 on in-digenous and tribal peoples.103

Indeed, they should be upset. Te estimated agricultural impacts o the FA on Colombiasdomestic producers are overwhelmingly negative. A recent study calculates that small armers

will see reductions in income ranging rom 16 to over 45 percent, depending on their producedcrops.104 Oxam Colombia estimates that the current FA will destroy at least 20 percent o em-

ployment or small armers who already live on less than $3.90 per day, or 15,000 jobs.105 Tesame study estimates that Colombian agricultural production will be reduced by more than $218million annually in the rst six years o FA implementation, leading to a 15 percent reductionin harvested land. As discussed at the beginning o this brieng, the Colombia has massive in-equalities in terms o both wealth and land, and the impact o the FA on rural armers will onlyserve to increase this gap.

For example, the implementation o the FA will allow U.S. corn exports to bypass Colombiasdomestic purchase requirement system, designed to support domestic producers (Chapter 2, Ar-ticle 2.15). Te duty-ree allowance to the U.S. is greater than the total amount o yellow cornColombia imports rom the rest o the world.106 Tus U.S. corn exports to Colombia are estimat-ed to increase by 21 percent ($45 million) annually, leading to a 23 percent decline in Colombiandomestic prices and a 6.9 percent decrease in domestic production.107

Similarly, with the implementation o the FA, Colombian rice armers will experience the tran-sition rom total protectionan 80 percent tari on all rice importsto none over the imple-mentation period o 17 years. U.S. paddy and processed rice exports to Colombia are estimat-ed to increase rom the negligible level o one million dollars in 2005 to up to $28 million therst year o the FA to an estimated $110 to $200 million a year in the longer term.108 Based onUSDA gures, the removal o the 80 percent tari over the implementation period will result ina 44 percent decline in Colombias domestic rice prices, resulting in an increase in domestic de-

mand o over 17 percentbut at the same time, a 22 percent decline in Colombias domestic pro-duction o rice.109

Te one agricultural area in which Colombia might benet as a result o the FA is in sugar ex-ports to the U.S. However, the U.S. has maintained a quota or sugar and sugar-containing prod-ucts to protect domestic producers, limiting Colombian sugar exports to the U.S.

Te Colombia government acknowledges these likely losses, but claim that these negative im-pacts are oset by other economic benets that will trickle down to create positive social impactson groups which may not directly benet rom the FA. However, an interview with the aore-mentioned high-ranking ocial in the Ministry o Industry, rade, and ourism revealed that


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the government does not have a plan or retraining or supporting the thousands o rural laborerswho will lose their employment. Tese laborers may become tempted to engage in coca cultiva-tion or join paramilitary and guerrilla groups. Indeed, during the FA negotiations, the Colom-bian Ministry o Agriculture stated that the negative impact o the FA on armers would lead tomigration to the cities or other countries (especially the United States), working in drug cultiva-tion zones, or aliating with illegal armed groups.110 Tese impacts would thus lead to increased

violence and coca cultivation, undermining key goals o U.S. policy toward Colombia.

Racially Concentrated Impacts

Aro-Colombian and indigenous groups are strongly opposed to the FA, or several reasons.First, they claim that they were not consulted in the FA negotiation process,111 a violationo their rights as protected by Law 70 o 1993, which recognizes the right o Aro-Colombiangroups to collectively occupy, own, and manage their ancestral lands, and requires the Colombiangovernment to consult with their leadership in making decisions aecting their lands and rights.

Te groups ear the FA will negatively impact Aro-Colombian and indigenous armers, who

will not be able to compete with heavily-subsidized U.S. agricultural goods.

In addition, despite the protections aorded by Law 70, Aro-Colombians have been dispropor-tionately aected by orced displacement by paramilitary groups (with government approval).

Tis displacement has occurred because their lands, especially in the Pacic Basin region, havebeen ound to be rich in natural resources ater the creation o the 1993 law. Te FA will ce-ment their displacement and may cause environmental damage to their ancestral lands as oreigninvestors purchase lands rom their displacers to develop natural resources.112

An Aro-Latino Letter to Congress representing over 50 Aro-Colombian groups, argues thatthe lack o specic labor regulations regarding Aro-Colombian and indigenous groups in the

FA will not protect Aro-Colombian workers rom endemic racial discrimination.113 In thesame letter, Aro-Colombian groups cited NAFA as an example o what is to come. It statesthat NAFA has displaced over one million small armers in Mexico, led to increased illegal mi-gration, and that the dispute mechanism has been used by mining corporations to ght legislationand rights protecting Aro-descendent and indigenous groups in Mexico.

Te FA and U.S. Leverage over Colombias Labor Situation

Te U.S.Colombia FA gives the United States new incentives and mechanisms to monitor thelabor situation in Colombia and to press or improvements. Proponents o the FA thus argue

that the United States will have new leverage with which to improve worker rights in Colombia.In addition, some proponents o the FA argue or its passage to reward and institutionalize thedramatic progress made by the Uribe Administration, and urther argue that rejecting a ree-trade agreement with Colombiawould sacrice our national interest in a stable, peaceul, andprospering hemisphere.114 Tese claims merit careul scrutiny.

Ironically, the passage o the FA may remove the biggest incentive or the Uribe Administra-tion to respond to labor rights advocates. Passage o the FA may thus urther weaken union ac-tivity. Some rights organizations believe that, in the same way Guatemalan unionist murders ell


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and then rose again ater the passage o CAFA, passage o the U.S.-Colombia FA will leadto a halt in progress or the labor rights movement in Colombia.115

At the same time, passing the FA may decrease the ability o the U.S. to infuence Colombiaslabor situation. Te weak labor provisions and mechanism o enorcement in the FA mean thatit will likely be dicult to infuence uture activity o the Colombian government using FA-

provided sanctions in response to labor law violations.

According to the AFL-CIO,enactment o the FA will not incentivize the government to im-plement existing labor law or improve labor legislation.116 In act, an interview with the aoremen-tioned ocial in the Colombian Ministry o Industry, rade, and ourism (which was responsi-ble or the negotiations o the FA), revealed that the FA is seen as an opportunity to promotemore cooperatives in order to increase the competitiveness o Colombian labor. Cooperatives, asdiscussed, are widely recognized as a orm o labor used to bypass labor protections. Raticationo this FA by the U.S. Congress could thus solidiy CAs as a legitimate and acceptable ormo labor in Colombia.

In addition, even i a change in leadership led the Colombian government to become more re-sponsive on labor rights, the FA could still undermine the labor situation in Colombia throughits negative eects on rural workers. Indeed, the possibility o rural workers turning to paramili-taries and drug cultivation raises the troubling prospect that the FA could undermine Colom-bias security situation. Rather than sacricing our national interest in a stable, peaceul, andprospering hemisphere, passing the FA may in act create greater instability and violence bypushing more workers into poverty without creating other options and opportunities besides drugcultivation or guerrilla activities.

Learning rom CAFA and NAFA

Te subcontracting o labor and more generally the exibilization o the labor marketundercut the well-intentioned eforts to create a culture o complianceit is not the lack o knowledge o labor rights but a ear o unemploymentthat inhibits workers rom exercising their labor rights.

Washington Oce on Latin America

Lessons rom CAFA (also known as DR-CAFA, the Dominican Republic-Central AmericaFree rade Agreement) and NAFA (the North American Free rade Agreement) may be in-structive in the case o the U.S.-Colombian FA, as the agreements share a number o similari-

ties in the labor chapter (CAFA) and the dispute settlement mechanism (CAFA and NAF-A). For example, the Labor Cooperation and Capacity Building Mechanism established inArticle 17.6 and Annex 17.6 are similar to that established in the CAFA agreement, and thishas not served to improve labor outcomes in CAFA countries despite signicant investment bythe U.S.

Overall, the CAFA labor provisions have been viewed as ineective in creating better laborstandards and an environment o respect or labor rights. Te Washington Oce on Latin Amer-ica (WOLA) recently completed a three-year study investigating the implementation o laborrights reorms as specied in the DR-CAFA o 2005. DR-CAFA included about $20 million


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USD in unding to improve labor rights practices and enorcement in the DR-CAFA coun-tries.117

WOLAs 2009 study ound that union representatives, labor lawyers and human rights organiza-tions consistently maintained that labor rights practices in their countries have not improved sinceDR-CAFA was signed despite the stated commitments o the governments to implement labor

reorms. In addition to continued violence against labor rights activists and organizers, WOLAdiscovered that employers continue to demonstrate a disregard or labor rights and the govern-ments are still too weak to orce compliance. However, in many cases, (or example, Guatemala,)governments lack the political will to orce employers to comply with labor legislation and the la-bor provisions o the trade agreement. WOLA concluded that the U.S. unds were insucient toresolve the long-standing labor problems and impunity that plague the region and that the undscould not oset the lack o political will to improve the situation. Also, in many cases, these unds

were distributed to organizations that lacked the necessary skills or capacity to be eective.

An Institute or International Economics report states that Colombia FAs labor chapter isweaker than that o DR-CAFAs because the FA does not direct the parties to establish a list

o labor experts that would be called upon in the event o a dispute. 118 Te DR-CAFA expe-rience, combined with Colombias poor record o unionist violence, does not bode well or post-FA advancement o labor rights in Colombia.


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policy recommenDAtions

Based on the above analysis o the labor situation in Colombia and the impacts o the ree tradeagreement, Dmos has developed a set o policy recommendations to be implemented through ei-ther changes to the FA itsel, or barring that possibility, the creation o side agreements such as

those included in the DR-CAFA negotiations on labor.

Consider the Relationship between Labor Impacts and Security Interests

First, when considering the labor impacts o this FA, Congress should consider negative im-pacts on Colombian labor, especially on Colombias large and vulnerable rural worker popula-tion, as threats to not only broadly-based development, but security interests in the country. Te

vulnerability o rural labor to coca cultivation and paramilitary and guerrilla violence meansthat harming rural labor without providing constructive alternatives is counterproductive to U.S.counter-terrorism, security, and counter-narcotics aid to Colombia, which has amounted to $5.7

billion USD rom 19962009.119

Many U.S. agricultural goods, as specied in this brieng, areexpected to supplant local Colombian production. American taxpayer-unded agricultural subsi-dies to U.S. armers mean that U.S. taxpayers are paying to put Colombian subsistence armersout o business, and then paying again or security aid to Colombia to ght the resulting increasein violence that poverty brings.

Dmos recommends that the U.S. Congress require legislation and programs that would osetnegative labor impacts and stabilize labor markets. For example, the provision o jobs and skillstraining programs or rural armers and laborers aected by U.S. agricultural products can keep

workers rom turning to coca or violence. Tese programs can also increase the productivity andcompetitiveness o rural workers through the promotion o technology transer. Each o these

steps will decrease the need or security spending in Colombia as broadly-based developmentleads to alternative opportunities or Colombians, and thus decreased violence.

Require Broader Enorcement o Labor Standards, Protecting U.S. and Colom-bian Workers

I the text o the FA could be renegotiated, creating stronger enorcement o labor standardswould mean altering the text o the FA to make allailed enorcement o domestic labor legisla-tion punishable under the dispute settlement mechanism, rather than just ailures aecting tradeor investment between Colombia and the U.S. Te protection o minimum wages must also be

included in the text and enorceable under the agreement to protect the poorest Colombians romdomestic legislation aimed at increasing the competitiveness o Colombian business through de-creasing the cost o labor. Upholding labor standards in Colombia will protect U.S. workers romcompetition with labor made cheaper through exploitation, and at the same time protection Co-lombian workers rom exploitation.


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4

Reorm the Distribution o Fines under the Dispute Settlement Mechanism

However, even i the FA is altered to include broaderenorcement o labor standards, establish-ing strongerenorcement may mean reconsidering the way in which the dispute settlement mech-anism redistributes nes. Instead o returning the nes or labor inractions to a government en-tity, nes could go directly to agreed-upon labor programs or representatives, such as the three

largest Colombian labor conederations CU, CG, or CC.

A reormation o the dispute settlement mechanism can also be aimed at ghting Colombias un-acceptable level o impunity in labor cases. According to Adam Isacson o the Center on Interna-tional Policy,although the Colombian justice system is a positive contributor to the ght againstimpunity, it simply does not have enough resources to handle its caseload.120 Strengthening thecapacity o the labor judicial system to help ght impunity is thus critical to stemming labor rights

violations in Colombia. However, the cases o the DR-CAFA countries have shown that de-spite government promises and eorts prior to signing CAFA, weakness in judicial systemspersist ater the implementation o an FA. As such, in the case o Colombia, the reormation othe dispute settlement mechanism or creation o a side agreement addressing the redistribution

o nes collected or Colombian labor inractions could include channeling a specied portion ones collected or labor violations directly to the labor justice system.

Empower and Fund ILAB to Oversee Labor-Related Issues in Internationalrade

Currently, the U.S. lacks the capacity to enorce the mutually agreed labor standards in bilateraltrade agreements. Te U.S. International Labor Aairs Bureau (ILAB) could be an appropriatebody to oversee and enorce labor standards, but it is currently underunded. Te Obama admin-istration and Congress should increase support or the ILAB or this purpose. A stronger ILAB

could be instrumental in supporting labor initiatives in Colombia, as well as U.S. security inter-ests through broad based development programs ocused upon Colombian workers.

Reject Negotiation without Consultation

All Colombian civil society and labor rights representatives interviewed by Dmos agreed thathuman and labor rights representatives, Aro-Colombian and indigenous group representatives,and small, micro, and medium sized enterprise (SME) representatives were not consulted by theColombian government in any meaningul way during the negotiation process o the FA. In thecase o Aro-Colombian and indigenous groups, this is a violation o Colombias constitution.

Passing the FA constitutes a tacit acceptance o the negotiation process and the manner inwhich the Colombian democracy operateswithout the rule o law or democratic input andwith suppression through violent means. Whether or not renegotiation o the FA text becomespossible, Congress could demand that the Colombian government give SME representatives,human and labor rights groups, Aro-Colombian and indigenous groups a voice through mean-ingul consultation. Tese consultations can be used to inorm either renegotiation o the FAtext or in the establishment o side agreements. For example, Oxam Colombia, amongst oth-er groups, has called or the establishment and stronger regulation o a region-specic minimum

wage tied to infation and GDP fuctuations.121 Carlos Quesada o Global Rights has recom-


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mended the creation o a code o ethics to be enorced upon U.S. companies, so that Colombianworkers are able to hold companies accountable on labor and human rights issues, avoiding laborexploitation scandals similar to those in the fower, textile, and sugarcane industries.122

A wider consultation can help Colombia oset the worst labor impacts o the FA by generatinginnovative ways to oset negative impacts, and result in a greater buy in o the FA and its re-

sultant commercial operations by labor, human rights, Aro-Colombian and indigenous groups.Te buy-in o the Colombian people is especially important in the case o Colombia, as the gov-ernment does not ully or even partially control large parts o its territory.

New Administration, New Attitude toward Labor

According to Colombian Senator Cecelia Lopez, the impacts o the FA can be improved with-out renegotiation, but the Colombian government must implement better labor and rural socio-economic policies that ocus on developing Colombias internal market, leveling the distributiono income, and generating employment.123 Although the Uribe administration has made progress

on security issues, it has shown an inability or unwillingness to pursue deeper labor reorm to-ward labor-riendly policies, and until now U.S. pressure to respect labor rights has led to super-cial reorms covering more subversive methods o intimidation o workers.

Te Uribe administration is currently at the end o its last term, although another Uribista maybe elected president. Colombian politics are personalistic in nature. Tis means that the nextelected administration, even i it is Uribista, will be unlikely to be able to take as strong o a po-sition against labor and still retain the level o popularity enjoyed by Uribe.

For those U.S. Congress members interested in raising and upholding labor standards, delayingthe decision on the U.S.-Colombia FA may allow time or a new and more fexible Colombian

administration to come into power. A new administration may be infuenced to have the politicalwill to end impunity, support and protect unionists, and empower labor and labor rights groups,as well as implement policies aimed at osetting the worst labor impacts o the FA.


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6

conclusion

Te U.S.-Colombia FA will have negative impacts on several sectors o Colombian labor, in-cluding rural and agricultural workers, who are vulnerable to drug cultivation and violence. TeColombian government has not yet ormed a plan to oset these impacts, nor does it seem incen-

tivized to do so. In addition, the weak labor provisions and enorcement laid out in Chapter 17o the agreement mean that it will be dicult or the U.S. to infuence uture activity o the Co-lombian government through the ocial FA enorcement and sanction system. Te FA willthereore not increase the infuence the U.S. is able to have on Colombian activity in this area, andat the same time, the labor provisions that will not protect Colombian workers rom their ownanti-labor government. Indeed, the FA may urther restrict the governments ability to protect

vulnerable sectors. ogether, these negative eects on the Colombian labor situation mean thatthe FA will not promote broad-based development in Colombia.

In sum, the U.S.-Colombia FA does not appear to achieve any o its three labor-related aims aslaid out in the preamble, namely those to promote broad-based economic development, to provide

alternative opportunities to drug cultivation, and to protect, enhance, and enorce basic workersrights. Indeed, it may do the exact opposite. Harming rural workers may lead to increased drugcultivation and paramilitary and guerrilla activity, neutralizing U.S. military and anti-narcoticsaid to Colombia. In addition, the U.S. government will lose the carrot o the FA to incentivizethe Colombian government to generate improvements in labor standards in Colombia. With ananti-labor administration in power, this will lead to urther degeneration o labor standards andongoing impunity or labor rights violations.

In light o these ndings, Dmos has recommended that the U.S. Congress consider the ollow-ing when deciding whether to ratiy the U.S.-Colombia ree trade agreement:

the relationship between the FAs impacts on labor in Colombia and U.S. security in-terests in the country;

the need or broader enorcement o labor standards within the FA;

the need to reorm the distribution o nes under the dispute settlement mechanismto ensure unds go toward improvements in the labor justice system and labor rightsmovement rather than back to an anti-labor administration;

the value o a stronger and better-unded ILAB to oversee the improvement o laborstandards in Colombia;

the need or consultation o concerned actors in Colombia with regard to the FA to

ully understand its impacts, including human and labor rights groups; and nally,

to consider postponing the ratication o the U.S.-Colombia FA until these require-ments have been met and possibly until a new Colombian administration comes topower.

Te FAs negligible impacts on the U.S. economy do not provide a strong incentive to pass theFA on economic grounds. As a chiefy political agreement then, the U.S.-Colombia ree tradeagreement should be considered on political grounds. Colombias labor situation has become thecentral political obstacle to passing the FA or a good reasonit is poor. In its current orm, theFA will not improve the state o unionists and workers in Colombia. Dmos thereore recom-

mends that the agreement not be ratied until its impacts on Colombian labor can be improved.


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Documents

The Likely Impact of the U.S. - Colombia Trade Promotion Agreement on Colombian Workers