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27 Int'l J. Comp. Lab. L. & Indus. Rel. 407 (2011)
Labour Obligations in the US-Chile Free Agreement: The Illusion of Soft Law

handle is hein.kluwer/cllir0027 and id is 417 raw text is: Labour Obligations in the US-Chile Free Agreement: The Illusion of Soft Law* Sergio GAMONAL** This article focuses on the effects on labour of the United States-Chile Free Trade Agreement (FTA). The author makes a brief introductory reference to the origins of international labour law and the new developments in worker protection in times of globalization, highlighting the social clause, among other mechanisms. The social clause in Chapter 18 of the United States-Chile FTA is examined, basically identifying four types of standards: Labour commitments, labour obligations, cooperation, and procedures. Since labour commitments constitute soft law guidelines, their practical efficacy is equivalent to that of a policy statement. On the other hand, a breach of Labour Obligations can result infinancial penalties for the offender. However, these Labour Obligations are limited to monitoring the enforcement of each Member State's existing labour laws. The social clause is, therefore, fairly sterile, and the author concludes that the worker protection mechanisms in this type of FTA are in need of reformulation. Keywords: Social clause, ILO Declaration on Fundamental Principles and Rights at Work, fundamental rights, social dumping, globalization, soft law and free trade agreements. 1. INTRODUCTION International trade agreements address labour issues only tangentially, though trade-related labour rights have been addressed in the context of regional integration agreements such as those of the European Union (EU) and the Southern Common Market (Mercado Com6n del Sur, MERCOSUR). In this connection, MERCOSUR developed an important social dimension by adopting the Social-Labour Declaration in 1998, without prejudice to the need for improvements to overcome, in the words of Oscar Ermida, its 'democratic deficit' evidenced in the secondary, dependent, and non-decisive role of its political and social decision-making bodies.' These more developed systems will be set aside for the purposes of this study to focus on free trade agreements (FTAs) and social clauses. FTAs are bilateral or multilateral agreements that stipulate guidelines to liberalize trade between one or more countries to regulate that trade and set applicable limits and exclu- sions. They address various issues, such as customs administration, pure competition, tariffs, * A more extensive preliminary version of this work was published under the title 'El derecho intemacional del trabajo y las cliusulas sociales: el caso del Tratado de Libre Comercio entre Chile y Estados Unidos de Norteam6rica', Actualidadjuridica, no. 13, year VII (January 2006): 315 et seq. In addition, this article was presented at the Annual Meeting of the Law and Society Association, San Francisco, California, USA, 2-5 Jun. 2011. The author would like to take this opportunity to thank Professor Cesar Rosado for his valuable comments on the first draft of this article. Professor of Labor Law, Adolfo Ibiiez University, Chile. 0. Ermida, La Dimensidn Social del Mercosur (Montevideo: Fundaci6n de Cultura Universitaria, 2004), 56. Gamonal, Sergio. 'Labour Obligations in the US-Chile Free Agreement: The Illusion of Soft Law'. The International Journal of Comparative Labour Law and Industrial Relations 27, no. 4 (2011): 407-417. @ 2011 Kluwer Law International BV, The Netherlands

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