1. Why Do Social Movements Engage with International Law?

The history of international trade law would lead one to the prediction that labor would be resistant to engaging with it as a social movement tactic. The institutions of global financial capital built around the World Trade Organization (WTO) and trade agreements were born out of the Washington Consensus era where notions of development and growth were privileged above others. Activists argue that institutions like the WTO ignore civil society groups raising labor or environmental concerns, although some disagree (Reference HowseHowse 2016). Furthermore, capital moved first to develop international legal protections for their interests and concerns, leaving states and civil society to respond retroactively. While capital moving first has put groups such as labor at an institutional disadvantage—leading them to largely oppose these international organizations like the WTO—the globalization of capital necessitates that labor also find avenues to respond globally.

The ability for labor to play catch-up, find standing, and globalize depends on acquiring sources of social resilience, defined as a group's capacity to “sustain and advance their well-being in the face of changes to their status” (Reference Hall and LamontHall and Lamont 2013: 13). This notion of social resilience builds on a conception of neoliberal institutional development that asks how new global institutions have reordered social relations—in this case, how NAFTA and FTAs altered the institutional and cultural position of capital, labor, and the state. While past studies have focused on the doors that FTAs closed, this study joins resilience scholarship in asking if any doors were also opened.

Others have investigated the impact of NAFTA and other FTAs on the labor movement. Two prominent studies of NAFTA's impact on the transnational labor movement have argued that its impact was incidental—an unanticipated opening of a Pandora's Box by including labor rights in U.S. FTAs. Reference Hafner-BurtonHafner-Burton (2009) argues that NAFTA has advanced labor rights when it has triggered political mobilizations or when the United States has had the will to enforce the agreement. Similarly, Reference KayKay (2005) finds that NAFTA generated a global political opportunity structure that mirrors national opportunity structures, which resulted in the growth of the transnational labor movement. This paper builds on Kay's work, but asks the critical question of how international law can foster growth of the transnational labor movement when enforcement of international labor law is inconsistent or weak.

The core finding of this study is that labor has found normative leverage in international legal disputing that, through a gradual process of accretion, allowed it to globalize and institutionalize global labor rights norms to support their international organizing efforts. The existence of an international dispute mechanism is critical to these outcomes. Most activism framed as transnational is merely nationally bound activism couched in international language (Reference TarrowTarrow 2005). Tarrow views activism as flowing up and down a continuum from the local (or national), to the intermediate, which is often ephemeral or temporary bursts of international activism, and true transnational activism. True transnational activism is measured by the externalization of activist issues through the “vertical” projection of formally national disputes onto international institutions or through the creation of durable transnational coalitions of cross-border networks. Thus, true international activism must be sustained and contested within international governing bodies. In the case of FTAs, labor successfully externalized their previously national disputes onto the international institution of trade law through accretion, which established its international legal standing.

2. How Does Activism Impact the Normative Content and Power of International Law?

While the goal of norm development might provide the logic behind the adoption of FTA cases as a social movement tactic, it fails to fully explain how this engagement impacts actual legal development. We must go further and understand how activist engagement with international law impacts its institutional development, legitimation, and enforcement in ways unpredicted by IR theory. Activist engagement with international legal systems can drive the diffusion of norms. Norm development is an important social phenomena, independent of instrumentalist concerns of enforcement in the realist sense. Norm diffusion occurs through discourses of justification that can grant activists rhetorical access to putatively legitimate norms. This grant is a necessary precursor to rights claiming as an actual application of international labor rights.

Traditionally, scholars in the IR tradition have been extremely skeptical that international law is “real” law, let alone has a potential normative impact. IR theorists claimed individual nations' concerns with sovereignty undermine the development and enforcement of international law (Reference AlterAlter 2013). In these accounts, states are the primary actors and civil society has little impact. In legal scholarship, the realist turn similarly emphasized that law is decided by raw power and judicial decisions are applied post hoc to predetermined judicial decisions favorable to the powerful (Reference Leiter, Golding and EdmunsonLeiter 2005). In international relations, this argument takes the form that states, with the most power, condition the application of all supranational judicial decisions (Reference BoyleBoyle 1980). Governments only enter these agreements, sacrificing a degree of freedom, in order to secure policy or gain power over other states (Reference Keohane, Miller and SmithKeohane 1993). To realists, international law has no power in and of itself because it lacks enforcement power autonomous from other actors, and sovereignty allows governments to interpret and apply international agreements as they wish (Reference MorgenthauMorgenthau 1985).

Still, there are many examples of powerful actors not merely enforcing their will but instead conceding to the demands of less powerful states and civil society actors. When accounting for this evidence, IR theories continue to focus on states as the primary actor. For example, rational functionalist accounts of international law argue that governments enter into international agreements due to global collective action problems (Reference BilderBilder 1989). The incentives of individual states to resolve such problems contribute to the formation of international law. The compliance mechanism, according to rational functionalists, is reputation and a desire to preserve collective goods like the environment (Reference Keohane, Miller and SmithKeohane 1993; Reference SchachterSchachter 1991). Similarly, democratic regime theory argues that international law becomes binding because Western democracies exist in a “zone of law” due to the constraining forces of democratic culture (Reference SlaughterSlaughter 1995). Taking it a step further, constructivists argue that norms and their acceptability are built from the discursive back and forth between states about how they justify actions (Reference Kratochwill and RuggieKratochwill and Ruggie 1986). While these theories begin to introduce notions of norms, these constraints only act upon states leaving out the role of civil society or activists.

Sociologists and those working in the sociolegal tradition, in contrast to IR scholars, have tended to be much more reliant on theories of norms and cultural power to explain international law, in particular its implementation and adherence. Beyond cultural theories, such as world polity theory (Reference Meyer, Boli, Thomas and RamirezMeyer et al. 1997), most sociological theories of international law have largely taken either Weberian or Bourdieusian approaches to bureaucratic or occupational legitimacy. This is most common in research that argues international law is legitimated by experts (Reference BourdieuBourdieu 1986; Reference FishFish 1989; Reference HaasHaas 1997). For example, in Reference HaasHaas' (1992) theory of epistemic communities, international networks of experts work almost independently of state action to set norms and standards to which states then respond. Sociolegal theories, which explore legitimacy, begin to examine the construction of norms but remain focused on experts, not other actors in civil society. For example, Reference Dezalay and GarthDezalay and Garth (1995, 1996) show how international legal expertise, and international law with it, is legitimated through the deployment of symbolic capital to harness the “force of law” by masking national legal conventions and practices as neutral “universals.” Activists similarly can aid in this process through the legal conventions they deploy when making their claims for “universal” human rights.

Sociologists incorporating the constructivist tradition argue that experts construct the legitimacy of international law through the practice or discourses of disputing. Reference ContiConti's (2016) theory of legitimacy chains builds on this line of thinking arguing that supranational authority is constructed by brokers (e.g., the U.S. Trade Representative) linking justification for compliance across social fields, in particular fields of domestic and international law. Conti's notion of legitimacy chains is similar to legal theories of recursivity that claim that where norms settle is dependent on how the battle over them is articulated (Reference Halliday and CarruthersHalliday and Carruthers 2007) or similar theories of cyclicality that argue that norms are developed through cycles and feedback loops (Reference Barnett and FinnemoreBarnett and Finnemore 2004). Whereas Conti emphasizes state officials, activists can also engage in discourses of justification generating rhetorical access to these international legal institutions to legitimate and “globalize” labor rights claims, a necessary precursor for an international system of labor rights to become legible, institutionalized, and enforced.

This notion of activists engaging in a discourse of justification brings sociolegal theories of legitimacy into direct conversation with the constructivist tradition. The constructivists argue civil society plays a role in the process of law formation by focusing on contestation. Reference SinclairSinclair (2017) shows that state sovereignty is itself an iterative process of state creation as national borders only exist in relation to each other meaning international law is shaped by the same forces of public discourses and contestation as states. Since international law is subject to revision and reinterpretation, one can account for how activists help shape it without losing sight of the inherent power imbalances built into the system. For instance, Reference BaxiBaxi (2002) notes that the notion of human rights has many meanings operating at the same time. Fights over international law are, in part, discursive battles over which definition of human rights should be privileged. Similarly, Reference RajagopalRajagopal (2003) builds on the notion that international law is a project of state formation noting that international law, in the twentieth century, was largely shaped by third world resistance to the neocolonial project of development. As such, human rights are created by praxes of resistance and struggle. He argues international law has aimed to privilege forms of resistance more consistent with the neoliberal aims of individual rights (Reference RajagopalRajagopal 2003: 9). Similar impacts are apparent in FTA legal cases as labor demands more consistent with neoliberal notions of individual freedom find greater currency in the claims making processes.

The intersection of sociological notions of legal legitimacy and constructivist accounts of law formation highlight why labor would engage with FTAs as a project of international labor norm development. This is because, as the constructivists argue, the legitimacy of law is a discourse itself. Reference Brunnee and ToopeBrunnee and Toope (2010) argue that law cannot be based on a hierarchy between law-givers and subjects, but instead is based on reciprocity or the mutual creation of legal obligation. Drawing on the legal theories of Reference FullerLon Fuller (1969), they build on the idea that if there is no reciprocity law ceases to exist normatively or have authority. Law is a social interaction and those with greater power dare not risk undermining its mutual obligation lest laws' force disappear. For FTAs to create mutual obligation they must allow labor to engage in the discourse which gives law its meaning. The ability of labor to achieve its aims of promoting the core International Labor Organization (ILO) standards is only possible if labor's engagement is maintained. The need to sustain engagement also means international labor law goes through periods of deconstruction, when labor lacks leverage or allies to continue practicing its normative project.

This study builds on the constructivist approaches that bring activists to the forefront of this process. In previous studies of international law, when activists have been incorporated, they have often been narrowly defined, as lawyers and Non-Governmental Organization (NGO) workers (Reference Hafner-BurtonHafner-Burton 2009; Reference Hafner-Burton, LeVeck and VictorHafner-Burton et al. 2016; Reference Keck and SikkinkKeck and Sikkink 1998). Norms are not simply developed from experts imparting their authority upon a system, but also from labor, environmental, and civil society activists forcing these systems into action. In fact, Reference ContiConti (2016) in explaining the limits of his theory's applicability in understanding the legitimacy of international law highlights the situations where one should look for activists to fill in the gaps. He states: “The successful construction of a legitimacy chain is likely to vary when the distinction between fields are murkier; when enclaves at the intersection of fields are less clear or nonexistent; or when the role of interlocutor is not deeply institutionalized” (Reference ContiConti 2016: 155–56). The U.S. FTA regime is an example of a situation in which fields are murky; the intersection is unclear; and the role of interlocutors is not institutionalized. Not only is the field new, but powerful capital and government interests do not even want the field of international labor trade law to exist. Furthermore, it is completely unclear which government agencies are responsible for adjudicating the field (in the United States, the Department of Labor, Department of State, and U.S. Trade Representative all claim at least partial responsibility for enforcement). This confusion gives activists an opening to articulate a vision and make claims on the legitimacy of labor rights.

The utility of international law for labor activists lies in generating leverage for their conflicts with capital. It allows them to internationalize their conflicts by forcing supranational institutions to adjudicate them, which results in the generation of global norms. Globalizing, in the sense used by Reference EvansEvans (2010) or Reference TarrowTarrow (2005), is about institutionalizing international action. As Tarrow points out, even if actors claim they are acting globally, the location of the contestation may still be limited. In his typology of transnationalism, only externalization of issues to global institutions and transnational coalition formation represent truly durable transnational activism. Evans' sources of globalizing leverage (communication, ideology, politics, and economics) applied to the specific case of the U.S. free trade regime shows how labor was able to achieve this true transnational standing to make claims globally. Accretion is the mechanism that enabled labor's leverage to materialize this standing. Subsequent labor battles, over time, normalized, and legitimized labor's right to make global claims, which were institutionalized through global activism.

2.2 Interview Findings

The interviews offer a detailed reflection on the history, function, and utility of the U.S. free trade system as it pertains to labor rights. Key findings regarding the sources of labor's leverage to spread international labor rights norms found in the U.S. FTA system along with prominent case examples are summarized in Table 1. The two themes most commonly discussed in the interviews were economic power and norm development. Ideology was the least discussed, in great contrast to the legal arguments utilized in the cases themselves (see Table 2). The focus on economic power is not surprising as the labor movement was born out of industrial struggle with the forces of capital. The frequent discussion of norm development is also indicative of how union leadership and their lawyers view the system's utility. This view is most clearly illustrated by the near universal mention of norm development by interviewees. Using Reference EvansEvans' (2010) typology as a framework, in the following section, I discuss the political, communication, ideological, and economic sources of labor's resilience in the face of capital's neoliberal trade law project. I argue that labor has found and built these sources of resilience through accretion in the U.S. trade regime to internationalize their claims.

Table 1 Sites of Labor's Social Resilience and Globalizing Leverage Found in the U.S. Trade Regime

Table 2 Types of Legal Arguments Made in FTA Cases Overtime

2.2.1 Political Sources

The political sources of resilience found by labor are perhaps both the most obvious and the most ephemeral. They are obvious because it includes labors appeals to elite allies and ephemeral because labor is also engaging in subtle projects of international labor rights norm development. This project of norm development is the process Reference EvansEvans (2010) calls victory through accretion. Five themes from the interviews related to political sources of labor's resilience under the system. First, the U.S. FTA labor provision represents an institutionalized form of the boomerang effect, which is when activists appeal to a country to force another country to respect international law (Reference Keck and SikkinkKeck and Sikkink 1998). Second, political resilience is generated through the sunlight effect, whereby filing cases generates media exposure that helps activists appeal for public support and pressure. Third, when labor's elected allies in government are in power, the system can be used to advance labor rights and norms through formal institutions. Fourth, neoliberal trade creates a demand by all parties for a common system (Reference EvansEvans 2010; Reference Sassen, Smith, Solinger, Topik and TopikSassen 1999; Reference SilverSilver 2003), as globalization demands international rules of law. Fifth, the trade regime creates political leverage for labor when it is used strategically by labor unions to advance international labor rights norms.

The boomerang effect (Reference Keck and SikkinkKeck and Sikkink 1998) was theorized as the political power that transnational social movements utilize to advance human rights. The argument is that when activists in country A are blocked by government A in their human rights demands, they appeal to their international activist network and get activists in country to B to pressure government B to make country A stop abusing human rights. The U.S. labor trade regime writes this process into the agreements themselves. For example under NAFTA, to address a violation that occurs in Mexico, Mexican labor organizations must get either U.S. or Canadian allies to help them file a complaint with their respective governments. Labor activists fighting to include labor provisions in the U.S. trade regime are, in part, attempting to utilize this formally institutionalized boomerang effect. In nearly all the interviews with labor activists, they explicitly described a boomerang process as being the most useful tool for advancing their cause. The case filed due to the violent political repression in Bahrain, discussed in detail below, is a stark example of this process.

Related to the boomerang effect is the effect of exposure gained from filing cases, most commonly media exposure. In about half of the interviews, media exposure was highlighted as major motivation for filing these cases. I differentiate this from the boomerang effect discussed above because the actors need not be governments. Media exposure can move companies to act for fear of consumer backlash or, perhaps more importantly, investor backlash. Lance Compa, NAFTA's first U.S. Director of Labor Cooperation and later union FTA lawyer, argued that in several cases, such as a Mexican cases involving mandatory pregnancy testingFootnote ² and the Washington State AppleFootnote ³ case involving migrant labor rights, companies changed their behavior because they thought media exposure could affect their bottom line. Multiple interviewees described media exposure as the main reason for filing a case. While media attention was often cited as a positive effect of filing a case, many interviewees were quick to point out that media attention only goes so far. Thea Lee, the AFL-CIO's chief economist, and others highlighted that media attention only helps if it is supported by a robust labor organizing campaign. No one source of social resilience in this FTA system is an end in of itself. Using this system is a supplement—not an alternative—to organizing.

Domestic mediation was another commonly cited source of political resilience and globalizing power. Domestic mediation is dependent on what Reference McAdam, McAdam, McCarthy and ZaldMcAdam (1996) calls access to elite allies, especially from the United States in this context. A clear example of strategically placed elite allies advancing labor's cause was the power exerted by congressional Democrats during the negotiations over Bush's fast-track trade agreement authority and later during Obama's push for the Colombia and Peru FTA agreements. Describing the impact of the battle over Bush's fast track authority and the CAFTA-DR bill, ALF-CIO's Thea Lee explained:

I think that demonstrates what the political power of this trade labor battle is, that on that issue we were able to delay that vote and almost win it. That demonstrated to Congress that they needed to take these concerns seriously and that's when the May 10th deal came a couple of years later so that's part of the political calculus that happens, which is that because we can put up a credible fight on the floor of the Congress around approval of a controversial trade agreement, we have more ability to negotiate for stronger provisions next time around.

The May 10th deal strengthened the labor chapter in model trade agreements which Congress' requires the president to utilize as a base for trade negotiations. This shows how the domestic mediating force of Congress can be employed as a source of labor's political power through the U.S. trade system.

The need for a common system provides another source of labor's political resilience. The fragmented nature of the U.S. trade regime's formation results in regulatory chaos and generates demands for a common system. Attempting to focus on capital's concerns while sidelining social issues has threatened the system's overall stability and highlighted the need for international uniform law for everyone—not just corporations. The region-wide approach in the TPP attempted to address these concerns, but ultimately these issues will have to be dealt with through international bodies such as the WTO. As one AFL-CIO official explained:

You know I would love to do this at the WTO, but we haven't been successful because of how the WTO runs, which is that it runs by consensus … and that's sort of where we're stuck because ideally that's the place for this conversation. It'll happen. It shouldn't happen piecemeal….

Perhaps the greatest political source of labor's ability to globalize in the U.S. trade system is how the labor movement and government officials have used it to develop and promote norms of international labor rights. One clear theme from the interviews was how dependent the institutional development of international labor rights protection is on the ILO. Reference Douglas, Ferguson and KlettDouglas et al. (2004) describe the transnational labor activist networks as the system's “eyes and ears,” the ILO as the system's “brains,” and U.S. trade legislation as the system's “teeth.” The ILO's international labor standards provide the terms of reference around which the debate centers. As AFL-CIO economist Thea Lee commented,

The great thing about the ILO declaration is that it is an international consensus document that involves government, workers, and employers. You know it's got plenty of weaknesses, one of the weaknesses is that the ILO has no enforcement powers. Our concept was to take the international consensus on workers' rights and embed it into a trade agreement where there could be potentially an economic consequence.

This statement encapsulates the dominant characterization of the FTA systems' utility discussed in the interviews. Labor hopes that by engaging with the system, ILO standards can be given force by connecting them to potential sanctions. International norms matter because they set the guidelines for appropriate international state behavior. As the AFL-CIO's trade and globalization policy specialist, Celeste Drake explained,

[T]he ILO has even less teeth than an FTA provision because you know the worst that can really happen is a strongly worded report. Well, in some cases some countries have shown they are susceptible to international shaming…And as weak as that tool is, the workers are going to keep using it because it's there.

Interviewees described this approach to using the system as two pronged. First, they needed to fight for stronger, more ILO-centered standards in each subsequent agreement. Second, they needed to use the complaints to “test” these new standards and push for actualization of these principles.

A particularly common use of the FTA system in norm development is to file a case to support domestic labor law reform efforts. Filing such cases is a classic example of Reference TarrowTarrow's (2005) notion of externalizing national dispute to international institutions. Eric Gottwald, an International Labor Rights Forum (ILRF) lawyer who wrote the 2015 Peru complaint, said they filed that complaint in large part to support Peruvian efforts in their Congress to eliminate the temporary work contract system. Similarly, many cases over the years have aimed at reforming Mexico's system of Partido Revolucionario Institucional (PRI)-dominated protection unions, which are company friendly unions politically controlled by the long ruling PRI political party and sign contracts favorable to PRI connected employers to insulate them from the independent unions. UFCW lawyer, Stan Gaceck, noted that the sunlight and pressure from the FTA system has helped pushed forward calls for labor reform in Mexico even if it has not resulted in the degree of reform labor would like. As Lance Compa summarized, “In terms of norm creation it's basically a paradigm of a soft law approach and a soft law system…[that has the] cumulative effect of establishing norms of behavior and then figuring out again indirect ways of holding actors accountable to those expectations.” Labor is frustrated because on paper the system should be hard law, but in actuality they are left with a soft law system. But, by appealing to this soft law system of formal written rights in a trade agreement, labor can institutionalize norms of behavior. That these core labor norms are accepted and expected on a global scale is the real political victory for labor in engaging with the trade regime. Labor now has a more institutionally secured seat at the table than they did before.

This understanding of norm development had a parallel reality from the perspective of the government officials charged with adjudicating the system. All the government officials interviewed at the DOL and State Department referred to this as the process of labor diplomacy. Norm development was the subject on which the union activists and government officials talked the most similarly. The difference was that the government officials pushed norm creation through enforcement in the form of diplomacy, whereas union activists believed norm creation came from exposing issues.

The government officials described norm creation as both a process of change in bureaucratic logic and the advancement of labor rights as an issue of diplomatic engagement. Sarah Fox, Obama's Special Representative for International Labor Affairs at the State Department, explained the Department's evolution, stating that after the Cold War, economic stability and equality came to be viewed as important to democratic stability and the mission of the State Department. This understanding of economic stability is instrumental to U.S. foreign policy and gave rise to what both Sarah Fox and her counterparts described as labor diplomacy. The DOL officials I spoke to were adamant that most of their work and success goes unnoticed and must go unnoticed to succeed: it is the unglorified work of diplomacy. They explained that the issues with enforcement go beyond government willingness but are also a matter of limited capacity and expertise. They suggested that the United States has been instrumental in developing norms for addressing these problems. Mirroring the union activists, a government official noted, “A judgement doesn't result in the promotion of the labor chapter.” While labor backs up filing cases with organizing, the government officials back up their judgments with labor diplomacy. The process of accretion advances labor norms not only through labor activism, but also through institutionalizing labor diplomacy in the government agencies tasked with adjudicating these labor agreements and in the diplomatic process.

2.2.2 Communication Sources

Regarding communication sources of resilience, which are the ways the FTA system has engendered greater cross boarder interaction in the labor movement, the interviews focused on two issues. The first was how the very structure of the FTA system itself promoted communication, interaction, and grew the international labor movement's activist network. The U.S. FTA system, beginning with NAFTA, requires that violations which take place in one country be filed with the labor department of the other country in the agreement. As Reference KayKay (2005) shows, this created a demand for new partnerships as unions in Mexico would need unions in the United States or Canada to file cases for them. This point was frequently confirmed by my interviews. Second, the interviews highlighted how the creation of an integrated market led to a confluence of interests generating greater cross-border solidarity and collaboration. Common enemies create common friends. Building a stable network of international labor activism fulfills one of Reference TarrowTarrow's (2005) key requirements for activism to be considered truly transnational.

The structure of the labor complaint system in the FTAs was mentioned in most interviews as a source of the growth in the labor network. Reference KayKay (2005) argues that the system was the genesis of these relationships by creating an international political opportunity structure. My interview data instead suggested the relationships already existed and the structure of the system formalized these relationships. The structure not only forced the network's growth, but also made the relationships more equitable. Seeking help from partners in Mexico makes it harder to argue for protectionism or U.S. union domination of the system. As Cathy Feingold, the AFL-CIO's International Director, explained, “What I would say is that the traditional conveyor belt is North to South right? … I would say what NAFTA did is change the conveyor belt so that it was like we don't just do a submission without working with our Mexican partners who say this is what we want.” The agreements required solidarity between national labor movements and thus fostered collaboration and a pursuit of mutual interests.

A demand for information further encouraged growth of the international labor network. Entire NGOs have grown to facilitate the increased collaboration between North and South. As Chad Gray, researcher at Empower, a subsidiary of the Mexican labor rights NGO PODER, who provided research for the Chedraui complaint, explained organizations such as his were created to provide the “strategic node” to manage the growing relationships and flow of information between the Mexican and U.S. labor movements. The increased importance of these new NGOs shows how the labor movement was forced to think more broadly and engage with groups previously excluded from the conversation.

The creation of more integrated markets under the U.S. trade regime has encouraged greater communication between domestic labor movements to respond to the challenge of globalizing capital. As Brian Finnegan of the AFL-CIO's international department observed, being forced into fights over a proposed trade agreement introduced South American unions to a reformed AFL-CIO that was no longer collaborating with the Cold War CIA against leftist unions in the region. Beyond geopolitical history, engaging around trade helped U.S. union leadership overcome their protectionism and helped Southern countries overcome their fears of losing market access if they opposed the agreements. Globalization has forced domestic labor movements around the world to work together.

Reference EvansEvans (2010) pointed to the expansion of the internet and cheap global communication as a means of facilitating labor's ability to globalize. The interviews offered evidence to support this point of view and highlighted how communications technology has diffused power downwards within union hierarchies. The rise of internet communication and social media has made deeper cross-border solidarity possible particularly at the rank-in-file level in ways previously unimaginable. As Ben Davis, the United Steelworkers' International Director, discussed,

We actually got a good core of rank-and-file activists who have now been many times to Mexico, and the Mexicans have been up and visited our plants and our locals and these guys all have each other on Facebook and social media. Among a small core group of activists there is really regular communication and they know each other's families.

He further explained this does not mean there are not challenges: “but, of course, that doesn't extend to the bulk of the membership … and that is after 10 years of pretty systematic work.” Nonetheless, this attempt at real cross-border organizing has generated a cadre of activists who communicate across the international labor movement.

U.S. Department of Labor officials report that the FTA system has created a parallel process of network building among government officials. These officials discussed the creation of “labor diplomacy” and observed that while often obscured from public view, they have developed deep relationships with their counterparts in other countries with whom they negotiate over complaints, as well as with the NGOs that provide the third party information needed to keep this system running. The structure of NAFTA and the subsequent trade deals not only was the genesis for the development of a global labor network, but it also created a global network of government bureaucrats working on these issues and engaging in what they call “labor diplomacy.”

2.2.3 Ideological Sources

Reference EvansEvans (2010) argues that the rising prominence of human rights offers ideological openings for labor to globalize. He described ideology as a “double-edge sword” explaining,

Neoliberal (and classical liberal) privileging of individual agency over collective action is indeed ideologically inimical to the political culture that labor needs to counter the power of capital. Nevertheless, the global diffusion of ideological frames that assert the universal right of all human beings to being treated with dignity and to having democratic control over collective rule making is hardly a gift to capital (Reference EvansEvans 2010: 357–8).

The focus of neoliberalism on individual freedom, epitomized in Margaret Thatcher's contention that “there is no society,” universalized the notion of individual human rights. Evans believes these universalized ideological frames, which neoliberalism purports to defend, can be used to labor's advantage if employed strategically.

In my analysis of labor cases, I found that those that dealt with individual freedoms (violence or discrimination) gained greater leverage in trade disputes than cases around collective freedoms (freedom of association). This hierarchy of human rights where issues of violence and equality are more likely to find success has been found in other scholarship as well (e.g., Reference Keck and SikkinkKeck and Sikkink 1998). Cases that interviewees flagged as “particularly successful” often dealt with either violence or discrimination issues which could be couched in neoliberal language of an individual's market access. While ideological sources of social resilience did come up in the interviews, they were the least discussed of Evans's predicted sources of labor's globalizing power. The interview findings contrasts greatly from the legal arguments presented in the cases themselves, where ideological themes are frequently cited (Table 2). This dissonance between the expressed interests of the labor activists interviewed and the arguments they present in their cases highlights how the ideological language of neoliberalism can be strategically powerful even if the activists' aims and focus lie elsewhere.

Market access legal arguments were present in eighteen of the forty-two cases filed under the FTA system and took two forms: either migrant labor issues or issues of gender discrimination. The migrant labor cases, filed under NAFTA, deal with temporary visa holders from Mexico who went to the United States to do seasonal work. The temporary and cross-border nature of this work has made it particularly hard for the workers to find legal redress for violations of their rights. The cases against these temporary visa programs filed under NAFTA have arguably been the most successful in terms of generating concrete changes and improvements. Two lawyers who worked on migrant labor FTA cases said that the cases were particularly powerful because they are about marginalized groups' access to work and because capital is highly dependent on the migrant labor system.

The other way issues of market access were evidenced in the interviews was in discrimination against female workers. This theme is vastly more evident in the legal arguments than in my interviews. The NAFTA labor case system was used early on to combat the practice in Mexico of pregnancy testing female workers as a condition of employment (U.S. NAO Case No. 9701). The practice was widespread in the Mexican maquilas in the 1990s, while not being especially known to American consumers. Lance Compa explained in our interview about the impact of the attention brought by the campaign:

[T]here were public hearings in the U.S. cities along the border and a lot of public pressure was put on the companies to stop those practices and they did. The pressure of this exposure, this sunlight that was put on this practice under the NAFTA labor agreement, led to the companies halting this practice. And it also led to a progressive city government in Mexico City at the time, which adopted a municipal law banning pregnancy testing.

Compa described this case and the Washington State Apple case, about migrant labor, as the two most successful under the U.S. labor trade regime. These “most successful” cases addressed core promises of neoliberal ideology.

Beyond market access, it was human rights issues, such as is freedom from politically motivated violence, which gained the most traction in the FTA complaint system. This success is because these individual freedoms are most clearly able to connect to the heart of neoliberalism's ideological promise. Interviewees claimed that filing trade cases around violence has been particularly helpful in raising labor issues. In some instances, a FTA case is often the only forum available for labor activists to demand a government response to political violence. The fights over the Colombia Labor Action Plan as well as the cases against Colombia, Guatemala, and Honduras all center on violence against trade unionists. In the interviews with U.S. Department of Labor employees they frequently referenced cases about violence and further explained that the U.S. has had the deepest and longest engagement with other countries on these cases. These cases also represent the greatest source of labor movement frustration and disillusionment as these problems persist. Beyond direct traditional forms of violence, these cases highlight other issues such as forced labor, child labor, and health and safety issues.

Cathy Feingold, AFL-CIO international department director, explained the utility of these cases in fighting violence against unionists in Bahrain who were helping to lead protests during the Arab Spring. Feingold stated that the unions called the AFL-CIO for help saying,

[T]hey are killing us. They are torturing us. They're putting us in jail … They came to us and said we need you to use these tools [the complaint mechanism] … it was literally the only tool that the organization had. [The union] is one of the few nonsectarian groups in Bahrain, so what was at stake was enormous. This class-based organization that was not Sunni versus Shia, which is precisely why the government wanted to break it.

She further contrasted Bahrain with their work on Colombia:

[The cases] are tools—not ends. It became part of a broader campaign for these organizations. And sometimes the only tool that groups have to say to the world is “help” and so we use them … in Colombia where they're part of larger campaigns for workers to get more space, about generating labor law reforms they need in the country. You don't see them as ends unto themselves. They're tools to support workers' rights, but within that broader context.

Feingold's notion of generating space gets to the heart of the findings of this study. Social resilience is about finding space under neoliberalism. To present logical coherence, neoliberalism cannot disavow its principles of individual liberty even when they present opportunities for counter narratives.

2.2.4 Economic Sources of Resilience

Economic sources of resilience found in the neoliberal trade regime are essentially the same economic leverage labor has had since the dawn of industrial capitalism—just applied to a modern setting. Economic resilience is the means by which labor can gain leverage in the system by threatening capital's profits. Reference WrightWright (2000) argues that labor has two forms of power over capital: structural (labor's strategic location within the production process) and associational (labor's collective action power). First, labor has found sites of resilience when cases are linked to its positional ability to disrupt production, or what Wright calls labor's structural power. This is most clearly seen in cases in which the violations occur in an industrial sector of one country whose main export market is the other partner to the trade agreement where the case was filed. Second, economic leverage is found when labor connects a case to an ongoing labor organizing campaign, which is an expression of Wright's associational power. In this situation, the case is secondary and acts as ancillary support in the classic battle of labor against capital.

Strategic linkage of cases to economic leverage is a potentially powerful source of social resilience. It takes advantage of a nondiversified capitalist actor. This can either be on the demand side (e.g., where the capitalist is dependent on a single market) or on the supply side (e.g., migrant labor cases where U.S. capitalists are dependent on Mexican labor through the U.S. government's temporary visa program). The importance of economic leverage came up in all but one interview. The Washington State Apple case, a case alleging wide-scale labor abuses against Mexican temporary workers granted H-2A visas to work the state's apple harvest, is an example of this process. The industry was both dependent on the temporary agricultural workers and worried about backlash from the Mexican consumers who were the industry's main export market at the time.

Access to the U.S. market is an incredible incentive and threats to this access increase motivation to take action. Celeste Drake, among others, discussed the power of not just the newer FTAs but also the older Generalized System of Preferences (GSP) program in supplying this motivation. The GSP program is different from FTAs, as the program is unilateral allowing the United States to act without fear of being held accountable to the same standards. Additionally, GSP review is an automatic, periodic bureaucratic renewal process making it more insulated from claims that the government is simply doing activists' bidding (Reference Nolan GarcíaNolan García 2010). A DOL official made the point that different employers interpret economic leverage differently. Discussing their work on the Honduras complaint, they differentiated between different types of capitalists. They noted that employer associations with the mission of expanding Honduras' market access were extremely concerned about the FTA complaint and were receptive to working to resolve the problem. In contrast, the individual employers at the factory level, who were concerned primarily with contracts and price, were often hostile. Economic incentives are always powerful, and the technique of strategically linking a case to strategic position has been used to generate social resilience for labor.

Instances in which cases are connected to ongoing organizing campaigns are arguably the most commonly identified site of social resilience in this system. Discussion of using these cases to support organizing came up in just over half the interviews and was mentioned in twenty-seven of the forty-two FTA cases analyzed. Often used in combination with the strategic economic leverage, these campaigns can bring sunlight as well as public and government pressure on employers fighting a unionization effort. A classic case of this technique working successfully was the North Carolina pickle case in which the Farm Labor Organizing Committee (FLOC) connected economic pressure, organizing pressure, and NAALC publicity to bring the growers to the table ultimately resulting in a collective bargaining agreement.Footnote ⁴ As Lance Compa explains, “So again it wasn't just NAFTA and the NAALC that helped advance the cause, it's where it fit into a wider strategy that involved many different tactical moves.” This notion, that the NAALC is a tool for advancing a larger campaign goal and is not an end in of itself, came up frequently in the interviews. This can also be found in the Chedraui case where the union was looking for some way to expose that justice was being denied. As Chad Gray described, “Having some sort of transnational mechanism where the Mexican government at least has to say it received this complaint, it has to be adjudicated in some sort of way, would help expand those sites of pressure.” The NAALC system offers an international space to expose issues that were previously easier to ignore and often not addressed domestically. Ultimately, these cases can only provide a site of social resilience if used creatively in connection with traditional labor organizing.

3. Case Analysis and the Process of Accretion

Beyond the interviews, evaluating the actual cases these actors fought over further highlights how the system develops labor norms. Table 2 presents a summary of the types of arguments used over time. These cases highlight the importance of some of the sources of social resilience that were less discussed in the interviews but feature prominently in the legal arguments employed. Most importantly, while issues relating to neoliberalism's ideology were less frequently discussed in the interviews, they were extremely common in the legal arguments. Similarly, health and safety issues, play an outsized role in the legal arguments despite being minimized in my interviewees. The focus of cases on health and safety issues is partly a result of the three-tier structure of NAALC. Only issues related to child labor, minimum employment standards (such as minimum wage), and health and safety can go to an arbitral panel or result in fines or trade sanctions. The focus on health and safety is also indicative of the power of making normative appeals, which are in accordance with neoliberalism's core mythology of individual freedoms.

To investigate communication sources of social resilience, I examined how the composition of the parties filing cases changed over time to assess evidence of network growth. As Reference KayKay (2005) argues, NAFTA helped grow and generate the international labor network. Findings about the composition of filers over time are summarized in Table 3. Only looking at who signed on as a signatory obscures a lot of information about the people who were actually involved in the campaigns. Those who provide support might decide not to formally sign the complaint, but it is still indicative of general trends. Initially the assumption was that the filer had to only be from the country where the case was filed. As a result, it does not include all the organizations involved in the dispute. For example, the first cases against Honeywell and General Electric (GE) were cross-border organizing campaigns between the United Electrical Workers (UE) in the United States and the FAT in Mexico, but only the UE signed the complaint.

Table 3 Composition of Case Filers Overtime

Despite not always knowing all of the organizations that were involved in a given dispute, these cases do indicate trends in growth and composition of the labor network over time. Cases with a huge network of filers became more common over time. Higher profile cases tend to have more filers, indicating the importance to the movement. The AFL-CIO as a federation became a more likely signatory that actively filed these cases in the Obama era. The AFL-CIO was also the driving force in all the non-NAFTA cases, except Peru, indicating they are more central to the global labor network outside of the North American countries. The North American unions have more integration across the AFL-CIO's individual affiliated unions who drove most other cases. The data also indicated the importance of the FAT in cases filled in Mexico. Finally, throughout this entire time period, NGOs, many of which were legal defense groups, were essential to this network in filing international labor cases. The importance of groups interviewed such as PODER, Centro de los Derechos del Migrante (CDM), and ILRF in Mexico and Latin America acting as what Chad Gray called a “strategic node” highlights how the structure of the global network has changed and grown. The importance of NGO groups in connecting unions across borders generates the communication needed to globalize and generate social resilience.

Examining cases that make economic arguments, either about the workers' pure economic leverage to disrupt production or that relate to ongoing labor organizing, four of the forty-two cases explicitly alluded to economic leverage and twenty-seven mentioned the case was related to an ongoing organizing campaign. The fact that few cases make arguments about economic leverage is not surprising. As some of the lawyers explained when labor uses the law as a social movement tactic, they often try not to reveal all their intentions. If you are filing a case because you think the employer has weak economic leverage, being explicit about this point might not be strategic. Yet explicitly pointing to their economic leverage can also signal the need to take the case seriously. The relevance of cases to ongoing organizing is often also obscure as they are not mentioned in the legal filling. While twenty-seven cases mention that they explicitly relate to organizing campaigns, my interviews and analysis of press accounts indicated the number of cases actually related to ongoing organizing is higher. For example, data from the interviews as well as the union's press releases revealed that the UFCW filed the Chedraui complaint to support their ongoing organizing campaign in the Southwestern United States. Yet, the complaint never mentions this campaign and instead focuses on issues of protection unions, discrimination, and unpaid labor in Mexico. The text of a case is not always indicative of the totality of what the case is about. This discrepancy between intent and legal argument is also a classic example of how cases are not an end in of themselves. While the complaints seek to remediate specific harms perpetrated against individuals and groups of workers, they are also attempts to create systemic change through the recalibration of costs for employers who commit labor violations, and they act as catalysts for building worker power and worker organizing. The UFCW's goal is organizing workers—not merely a favorable NAFTA ruling. The case is another tool to further broader change.

Regarding issues of violence and the related issues of health and safety, seventeen cases alleged violence and twenty-six alleged health and safety violations. As mentioned above, health and safety is one of the three principles that can go to arbitration under NAALC, so there is an extremely large incentive to self-select and only bring cases that include this issue. Health and safety issues found in NAFTA often relate to the willful neglect by employers to provide safety equipment and prevent exposure to unsafe chemicals. The issues found in the cases often relate to serious injuries including loss of limbs, brain function, death, and miscarriages. Health and safety along with explicit violence get to the heart of neoliberalism's ideological promotion of human rights resulting in greater likelihood of activist success (Reference Keck and SikkinkKeck and Sikkink 1998). According to Table 2, violence has become a more frequent subject of the labor movement's norm development project of late. The increased focus on antiviolence norm development gets to the idea of the test case, reported by several of the informants in the interviews. Cases are filed strategically to support either legal norm development or organizing. Here with the establishment of written language in the Colombia FTA, which at first appeared stronger, the AFL-CIO filed a test case to see if this stronger language resulted in stronger acceptance of norms in reality.

The final three legal arguments I commonly found in the cases are issues of market access, protectionism, and cross-borderer organizing. The market access issue relates largely to issues of migrant laborers and equality for women and was addressed above in the discussion of ideological resilience found in the interviews. What is surprising about explicit arguments of protectionism is how infrequent they are, with only five cases, most of which, as seen in Table 2, were in the first few years. When the language was used, it was couched in terms of violations of labor standards resulting in unfair competition, which was ultimately the original argument for including these standards. Further highlighting the solidarity between national labor movements that characterizes the FTA labor dispute system, the early cases that included protectionist arguments often related to cases about explicit attempts to create cross-border unionism. Right after the passage of NAFTA, many unions, such as the United Steelworkers, aimed to establish true international unions with international collective bargaining. Some of these efforts resulted in NAALC complaints, again highlighting how such complaints are tools for achieving broader goals. The general solidarity associated with labor's engagement with the U.S. FTA labor rights complaint system is in marked contrast to initial concerns raised in NAALC debates by labor's detractors that the system would simply become a tool of U.S. labor protectionism.

3.1.1 Accretion: Can You be Winning Even If You Are Losing?

Labor has found social resilience in the U.S. trade system through norm development. In his theory of labor's ability to globalize, Reference EvansEvans (2010: 360) refers to norm development as a process of accretion, explaining, “Efficacious new institutional forms may emerge from innovative successful campaigns, but even a string of apparent failures may result in the gradual accretion of the institutional foundations for future success.” Another way to phrase this is to ask, can you be winning even if you are losing? Celeste Drake of the AFL-CIO expertly summarized how labor approaches this process through the fight over trade agreements:

…our attention to using these tools, as weak as they are, has gotten sort of incremental changes. So we went from NAFTA where Clinton was forced to do the labor and environment side agreements … And then you go to Jordan where the issues are brought into the text of the agreement … And then there's a lot of hortatory language about, “we respect the ILO rights” … Then you get the May 10th [language], which says you “shall” [enforce] with respect to the rights … and not waive or derogate. It starts looking more powerful, but it is still attached to this petition, wait-and-bake situation. And that got Peru through because it was an improvement and the AFL-CIO took essentially a neutral stand on Peru … But even at the time of taking a neutral position on Peru, the AFL-CIO said this is not good enough for Colombia. So, the next step for Colombia was this labor action plan.Footnote ⁵ Well there was a lot of problems with the labor action plan, again it's something, it was a step, it's a result of us making [demands] … I think again the U.S. administration heard us on the Colombia labor action plan, like thanks for doing it, it's not adequate and [so they] came up with these consistency plans for the TPP.Footnote ⁶ The consistency plans are better in quality than the Colombia labor action plan, and so it's better than the Colombia action, better, better, better … and because of our pressure. Absent our existence, and those of our allies and affiliates, and others folks in Congress pressuring.

As Celeste highlights here, labor failed to get what they wanted with each step, but they always moved the standards forward a little.

Based on the interviews, case text analysis, and general research on news coverage of this process, I summarize some important moments in the accretion process over the years (Table 4). The important events outlined here include the increased labor rights standards in FTAs mentioned by Celeste Drake, as well also case arguments, government rulings, government enforcement actions, and other innovations. Much as in a common law legal system, these events set precedent that further establishes international labor norms. In the beginning, they had to fight for labor-trade linkage and then they had to fight for the right to file cases. They had to test each standard in each country and demand action when governments derogated in their duties. While some of the steps outlined in Table 4 are failures and include setbacks, such as those during the Bush years, impressively the trend has largely been upward toward greater acceptance of labor rights norms. Following pressure from the AFL-CIO and their allies in congress, the Trump administration has largely adopted the Obama labor approach from the TPP, and the renegotiation of NAFTA has largely strengthened the language of the labor provisions—not weakened them—leading the AFL-CIO to endorse the new agreement (AFL-CIO 2019). Despite these labor victories over the language of the agreements it is unlikely that the Trump administration will enforce these labor provisions with the same energy as Democratic administrations have. Overall, the space for labor to make claims has grown in both legal language and engagement, there is an increased expectation by government that labor should be included in the discussion, and the ball is inching forward toward stricter, more established standards for labor rights in these arguments. This is how norm development creates a mechanism for labor's social resilience under a neoliberal institution through a process of accretion.

Table 4 Events in the Labor Globalization Accretion Process Found in the U.S. Trade System

4. Conclusions

The global labor movement's interaction with the U.S. free trade regime represents an internationalization of social movements using law as a tactic. This subject is difficult to study because the aims and motivations of the labor movement can be obscured by the language of legal argumentation. This study focused on the U.S. free trade regime as one example of labor's attempts to gain global standing to match capital's massive globalization over recent decades. The trade regime was chosen given its historical hostility to labor's inclusion and its status, in the eyes of activists, as the embodiment of neoliberalism's strength. This highlights how social resilience can be found even in situations of extreme duress. As Reference Hall and LamontHall and Lamont (2013) explain, neoliberalism reorders social relations requiring us to re-map the benefits and challenges social actors face. Examining possible sources of social resilience under the U.S. FTA system, I find they track with Reference EvansEvans' (2010) theory of how labor could globalize: through increased communication, through new ideological innovations, through economic leverage, and through political pressure. Globalizing labor follows Reference TarrowTarrow's (2005) notion of transnational activism, which requires externalization of issues beyond the sphere of nations to international institutions and through the institutionalization of formal global activist coalitions. The process of accretion using Evans' sources of globalization leverage helps labor establish the true transnationalism described by Tarrow.

By examining labor's strategic interaction with the U.S. Trade legal mechanisms, we can understand the role activists play in the formation, development, and implementation of international law. While international relations scholars often focus on state actors and sociolegal approaches often focus on theories of professions, this study aimed to bring activists into the discussion. Building on constructivist and sociolegal theories of legal power and norms, the study calls for considering third party actors, such as labor, as strategic actors in the codification of international law. While this study focuses on the labor movement, there is no reason not to consider other third-party actors such as capital, NGOs, or other civil society groups. This examination of labor's legal claims made through U.S. FTAs highlights the role third-party actors can play in solidifying legitimacy claims through the performance of law in situations or fields Conti (Reference Conti2016) describes as “murkier.” When fields are unclear and the interlocutors between local and international fields are poorly defined, it appears the growth of the legal system is dependent on legal entrepreneurs, such as labor, to make the system legible. In taking labor's point of view to understanding U.S. trade law, we can see how activists can gain their own international legitimacy through strategic legal engagement. It also highlights that international law is a constructive process and labor's gains here could easily be deconstructed by the action of capital or hostile governments. To maintain these gains labor must engage in continued legal performance.

The mechanism behind labor norm development in the U.S. trade system is the process of accretion, which represents the slow march forward and the often hidden victories behind factual legal loses. The first Honeywell and GE cases filed under NAFTA did not resolve the problems in Mexico and did not result in trade sanctions, thus representing, on its face, a loss. In terms of accretion, these cases established that labor had a right to make claims under international trade law, began developing a legal process to adjudicate this law, and set in motion the development of intergovernment labor diplomacy. Even when labor did not have an ally in the White House they were able, by working with Congress, to force Bush to adopt the May 10th Language. This, of course, does not preclude the possibility of deaccretion. The Bush administration failed to aggressively enforce the NAFTA labor provisions and labor has expressed the likelihood that Trump will do the same. While much of the norm development has been in terms of legal changes, these FTAs have resulted in real changes in government and corporate action, as seen in Mexico where the government has taken steps to eliminate pregnancy testing and in the United States where federal and state governments have taken greater enforcement action against migrant labor abuses. This paper found that over time labor was able to advance norms of international labor rights through the practice of disputing trade cases. However, it remains unclear if this process will continue. The advancement of international labor norms has not reversed the decades' long decline in labor's fortunes, nor are the advancements of international labor rights safe from continued contestation. The Trump administration's threats to withdraw from international systems is sewing doubt and confusion for activists, capital, and state officials about the stability of international legal systems and threatening to breakdown international normative orders. Regardless of the direction the future takes, this investigation has shown that both normative construction and deconstruction processes are discursive contests in which civil society and activists play a crucial role. When NAFTA was first negotiated, labor rights and labor's global legal standing were excluded. Through a process of accretion, labor was able to find communication, ideological, economic, and political sources of social resilience within an archetypical neoliberal institution designed to undermine its power.