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SIDE EFFECTS

Stanford University Press

Contents

List of Illustrations.......................................................ixPreface.....................................................................xiList of Abbreviations.......................................................xvii1 A Tale of Two Side Agreements.............................................12 Políticas Claras: Governing Mexico's Environment.....................263 Mordida Politics: Governing Mexico's Workplace............................854 Governance and Attitude Change: Causes and Limits.........................136Notes.......................................................................175References..................................................................183Index.......................................................................199

Chapter One

ON OCTOBER 4, 1992, PRESIDENTIAL CANDIDATE BILL CLINTON gave a speech at North Carolina State University in which he took a position in favor of the recently negotiated North American Free Trade Agreement (NAFTA). Yet he faced a dilemma. On the one hand, he called for Americans to embrace the global economy and wider economic integration. Indeed, much of his campaign strategy was focused on the economy—even as he spoke, a now-famous sign hung on the wall in his Little Rock campaign headquarters that read (in part): "It's the economy, stupid." The election was fought in the context of recession, and economic policy was Clinton's main weapon.

But on the other hand, Clinton also made direct reference to environmental and labor standards being violated in Mexico and to the fact that the agreement negotiated by President George H. W. Bush did nothing to address these problems. He vowed to create supplementary institutions to guarantee enforcement of standards, as well as encourage capacity to be developed through cooperative activities between the partners. Once elected, Clinton followed through on his promise and established two "side agreements," the North American Agreement on Environmental Cooperation (NAAEC) and the North American Agreement on Labor Cooperation (NAALC). They were signed in September 1993, despite the irritation of the Canadian and Mexican governments, who thought they had secured a deal and who were not happy about bearing the cost of Clinton's campaign promises.

This book looks at what happened next. It examines the impact of NAFTA's side agreements on Mexican governance and the conditions under which a pro–rule of law norm has been absorbed by environmental and labor authorities. The side agreements require member states to uphold and enforce their labor and environmental laws. It was widely acknowledged (though never codified in the side agreements) that it was Mexico in particular that had a problem with law enforcement and might enjoy an unfair trade advantage by failing to enforce its own laws and regulatory standards. Under the new side agreements, Mexico could no longer turn a blind eye to the fl outing of its own rules.

We begin with a puzzle. External scrutiny (through the NAFTA side agreements) and domestic oversight (through strengthened courts and freedom of information) brought equivalent pressures to both the environmental and labor sectors. But pro–rule of law norms have been internalized to a greater extent in Mexican environmental agencies than in the labor agencies. Given that they were subjected to the same pressures, why did they not adapt at the same rate?

Most analysts of rule of law take the state as the unit of analysis, meaning that change happens to the state as a whole, rather than to certain parts of the state, such as sectoral ministries. No intrastate variation in rule of law is accounted for. For example, international relations (IR) theorists claim that variations in external "mechanisms of socialization" (such as persuasion and shaming) are responsible for variations in the rate at which domestic actors absorb ideas about rights and governance (Checkel 2001, 2005; Johnston 2001). Economists theorize that only states with long-term systems of equality and absence of abuse of authority will sustain rule of law (Weingast 2009).

Similarities between the environmental and labor cases allow a number of potentially important variables to be controlled, and we thus have an excellent natural experiment, enabling us to draw far more fine-grained conclusions about what causes changes to attitudes about rule of law in developing states and how regional agreements can play a part. It is important that we not lose the opportunity to compare these cases. Broader multistate studies of norm change (Risse and Sikkink 1999) and empirical analyses of rule of law (World Justice Project 2011; Kaufmann et al. 2009; United States Institute of Peace 2011) that use the state as the unit of analysis cannot provide this level of nuance.

I have two overarching aims in this book. The first aim is to examine the capacity-building and institutional development effects of the NAFTA side agreements. There is no comprehensive treatment of capacity-building and institutional development, even though it is an important aim. In fact, most accounts conclude that the institutions created by NAFTA to oversee enforcement of environmental and labor rules have failed to live up to expectations (Hufbauer and Schott 2005). From a policy perspective, understanding how the design of regional institutions affects institutional development and capacity building is important, given the growth of regional trade agreements and the inclusion of emerging and developing countries within them.

The second aim is theoretical. I seek to contribute to a more general understanding of how differences in institutional design (of the side agreements) and differences in domestic capacity (between the labor and environment sectors) influenced norm socialization. I argue that the relevant design and capacity factors are, first, the independence of the side agreement institutions from national control and the extent to which they permit citizen access and, second, the levels of professionalization and technical capacity of domestic bureaucrats and civil society actors. Professionalization is affected by the level of mobility of actors across professional boundaries (especially from civil society to ministerial positions), the permeability of domestic institutions, leadership within bureaucracies, and the level of politicization of civil ser vice positions.

The most important policy lessons from this study are that regional agreements seeking to improve norms of good governance in developing states need to incorporate (1) citizen complaint mechanisms, (2) opportunities for in de pen dent regional authorities to create public factual records that highlight transgressions, (3) means by which civil society can influence the work agenda of the regional institution, and (4) capacity-building resources for domestic authorities and civil society groups.

Domestic authorities should encourage (1) parallel institutions at the national level, such as transparency authorities and in de pen dent judiciaries, that reinforce external normative pressures; (2) education and training programs for civil society actors and bureaucrats; (3) opportunities for inward mobility into bureaucracies for trained nongovernmental organization (NGO)...