A Social Charter for a North American Community

North American integration confronts Canadians with the challenge of assuring effective community participation in a sustainable global economy without losing distinct cultural identities and valued social norms. Can individuals be effectively engaged in formal employment in global markets without risking full cultural assimilation? Can access to common resources continue to be governed in a global economy by the particular relationships to the land and traditions of stewardship that have grown up over generations in particular communities?

This paper suggests that within an emerging North American community it is crucial that we build more effectively on existing institutional structures to create a more appropriate social (including environmental) framework around an increasingly integrated continental economy. In particular, opportunities for involvement of indigenous communities in that continental economy without loss of cultural autonomy or identity will offer a crucial litmus test for any institutional framework.

Cultural convergence, modernism and the optimistic case for cultural survival

There is no space here to argue the point, but it is important to set the discussion against the backdrop of theoretical analysis of the forces at work, just to make the case that we do have a choice. In Canada, this argument has been pursued extensively by Charles Taylor.[ 1 ] What is interesting is that although Taylor recognizes the strong forces of convergence at work in the global economy and polity, he remains optimistic that it is possible to protect and promote cultural diversity within a liberal society.

Although the market economy requires a particular culture for the pursuit of capital accumulation and creative destruction, Taylor contends that different cultures of capitalism emerge in response to the dominant economic system. He suggests that the persistence of varying cultural enclaves is based on the force of social imagery in each cultural system.  Taylor envisions the possibility that, through social imagery, the process of convergence driven by increased interaction in the market economy can retain enough space for distinct identities and cultures to persist. We can have capitalism without convergence. But how?

In recognizing the rights of the citizenry, modern political theory has perceived that formulating universal principles to govern social and political interaction can safeguard the equality of all individuals. However, this method of recognizing equal rights has been accused of contributing to the formulation of a single dominant identity at the expense of a multiplicity of other identities. Formulation of general principles emphasizes the commonness or the sameness of the citizenry at the expense of the specificity and differences. In response to this concern about assimilation, a notion of identity has emerged that focuses on recognizing and affirming those differences that make each cultural identity unique.

A dialectic then emerges between striving for nondiscrimination based on universal treatment and striving for recognition based on differential treatment. Although Taylor does not deny the importance of liberal tenets of universal rights, he sees the process of recognition as at least as important in safeguarding rights. Rather than establishing a system based on promoting that which is universally the same governed by an identical bundle of rights, his preferred system is based on recognizing that which is inherently different.

The North American Free Trade Agreement (NAFTA)

Unfortunately, provisions such as procurement policies and preferential treatment which are at the heart of domestic policy instruments used to encourage domestic economic development and promote cultural survival can be viewed as trade-distorting non-tariff barriers, and NAFTA takes aim directly against them. For this reason, a system of reservations and exceptions was developed. Canadian negotiators were successful in establishing a series of reservations to reduce the scope of the agreement’s applicability in areas identified as important to Canada.

Policies related to aboriginal affairs are the subject of an unbound reservation to the disciplines of the treaty as are policies related to minority affairs. Protection of environmental measures that “… ensure that investment activity … is undertaken in a manner sensitive to environmental concerns” is secured. A further provision of the agreement allows Canada to require a foreign investor to carry out research and development, employ or train workers and to construct or expand facilities in Canada. And so on.

While reservations are intended to preserve the scope of government policy making, they have serious shortcomings. Authority for final interpretation of multilateral exceptions and a party’s reservations to the agreement rests with NAFTA-created arbitration panels, outside of domestic courts. If the reservation does not fully anticipate changes in the public policy environment, policies responding to such changes will be subject to the disciplines of the agreement.

Other overriding clauses within the NAFTA accord exacerbate the deficiencies of the reservation system. Chapter 11 on investment entitles investors to challenge government measures directly through an investor-state dispute mechanism. NAFTA is the first multilateral agreement to contain this process allowing foreign enterprises themselves, rather than governments, to bring up disputes pursuant to the provisions contained within the agreement.

Their actions cannot be checked by their government or court system. The trade experts overseeing the case will interpret the NAFTA agreement and apply their interpretation to each specific case. This chapter has seen by far the most frequent use of any sections of the agreement, in providing a check on government actions. The protection it provides has been used in quite a number of cases where a private investor, or non-government entity, was able to have a ruling decided in their favor.

At all levels of governance, there is a risk that policies and programs directed toward aboriginal peoples will be subject to the disciplines and the remedies at the disposal of foreign trade partners.

It may be fairly obvious to many that this investment protection has the potential to have negative consequences on any public policy initiatives that might appear to be in opposition to the investment clause. Within the international community there is little agreement on what exactly qualifies as a justifiable measure to protect the environment. In addition, within Canada there is a notable lack of unanimity on just what measures are considered legitimate in the protection of Canadian culture and aboriginal cultures.

To address these concerns, the mechanisms created by the NAFTA process itself should be used to erect a broader framework of social norms to govern interpretation of the agreement. Principles might be developed to safeguard environmental or social measures such as the preferential policies that may be essential to assure indigenous communities the opportunity to participate effectively in the mainstream economy without jeopardizing core cultural values.

A social charter for a North American community

The setting is opportune. Remarkably, messy political processes have generated on the ground something close to the institutional structure that a theorist might ideally have designed to address this problem. As NAFTA negotiations themselves stalled in the tri-national setting (actually in the US Congress in a Presidential election year), two parallel accords were negotiated as the condition for passage of NAFTA itself, and came into force at the same time (January 1, 1994).

Both agreements contained provision for review after four years, and reports by independent review committees were completed last year. Interestingly, they reflect strikingly different visions of the scope and purpose of the agreements and of the reviews themselves.

The principles enshrined in the NAALC reflect a common concern with the overall quality of working and social life in North America. These principles, however, relate only to domestic enforcement of legislation to govern labour relations in each nation. Although it was envisioned that the NAALC would evolve so that the general objectives of the agreement would be increasingly realized through trinational cooperative activities undertaken within the institutions and mechanisms created by the NAALC, the review panel insisted in its report that the Agreement should be viewed as a “social clause” of a trade agreement rather than as independently concerned with labour or social matters. The Mexican panel member and Mexican National Advisory Committee insisted also that the purpose of the review was to be interpreted narrowly against the provisions of the Agreement as negotiated, not as an invitation for proposals to broaden or reform the mandate in light of changing conditions or understandings in the continental community. Nevertheless the review committee did suggest that the institutions established by the NAALC should be better utilized to enhance trilateral cooperation in responding to “the emerging challenges presented by the changing nature of the workplace.”[ 2 ]

This present paper urges that this observation should be taken further, to view the NAAEC and its companion, the NAALC, not simply as parallel accords, but as “seriously negotiated international instruments,”[ 4 ] creating an overarching frame, within which NAFTA is to be managed in the interests of the overall community.

A North American agenda

Canadian Foreign Affairs Minister Lloyd Axworthy has expressed the desire to pursue a relationship on the continent that goes beyond narrowly defined economic continentalism. This expanded relationship entails fostering a sense of community for North America based on the common experiences and underlying values in the three countries. The route to a North American identity is to be through development of broadly based principles outlining a general framework for economic interaction without undermining the characteristics that make the various cultures unique. The development of such a common identity is not premised upon the many communities within each nation being subsumed within a homogeneous society.

But at the same time, it is clear in practical terms that cultural survival depends crucially also on effective participation and indeed integration within the mainstream continental and global economy. Canadian governments are actively engaged in promoting such participation; indeed, in the case of coastal, remote or indigenous communities among others, the policy instruments deployed involve precisely the sorts of strongly proactive and selective programs that invite accusations of unfair trade or unfair treatment.

The IRC review of the CEC (mirroring decades of experience of the International Joint Commission in dealing with transboundary problems) comes to the conclusion that many of the crucial issues to be addressed in maintaining the necessary ongoing balance among social and environmental objectives and trade or economic machinery cannot be settled scientifically, but only by appeal to democratic process.

The necessary framework is one based on civil society, civic process and civic science. We must confront head on the continuing tendency in current affairs to subordinate basic issues of social judgement and citizen preferences to what purports to be technical analysis. It is an old observation to note that this process is fundamentally designed to restrict the scope of democratic government and assure the continuation of the status quo in distributional matters, particularly claims on property.[ 5 ] But civic science is not the same as “sound science,” and consultation processes need not yield what trade specialists might judge “sound policy.” In a democracy, citizens must have the power, wherever possible, to make their own judgements about which risks to take on.

An important feature in the emerging agenda, then, is that citizens should not be denied independent certification of product or process information, or information about perceived risks that might be essential to adopting appropriately precautionary approaches, or the opportunity to refuse to assume particular risks, or indeed the opportunity to exhort other market participants to reflect such approaches in their own purchasing decisions. (The core feature of institutional design in both the NAAEC and the NAALC is the assurance of “sunshine and scrutiny” or “intrusive sunshine”– the continuing pressure on domestic enforcement that flows from openness, transparency and continuing vigilance through publicity, from outside the country as well as inside. It is this assurance of disclosure that underpins the effectiveness of the ultimate economic instrument, the informed consumer.)

If the goal for a North American community is to achieve cooperation and coherence without a forced convergence, we have to see the machinery of trade and commercial relationships as only one part of the broader formal and informal community structures that construct the context for the integrated economy, and set the ground rules for its functioning. Judgements about social purpose must constrain market functions, not the other way round.

One concrete manifestation of success would be agreement on spelling out ways in which cultural differences can find expression in distinct social and cultural policies in different communities which nonetheless all form part of a cooperative network and integrated economy. In the case of indigenous communities, an opening to begin work toward such a goal is offered by the priority accorded now by the NACLC to “in-depth studies on emerging challenges and topics of mutual concern.”[ 6 ]

Conclusion

The challenge of speaking truth to (or simply crafting images for) the relevant powers is greater yet. Canadian public policy can play an important contemporary role by working toward and offering a model for a social framework within which an emerging North American community can assure social cohesion without insisting on complete convergence, policy harmony without homogeneity, and protection of cultural diversity without commercial barriers.

Respect for an inclusive deliberative democracy demands no less; achieving that goal is the challenge to be faced by the readers of this new Journal in this new wave of policy research.

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Notes

*   Rod Dobell is Professor of Public Policy at the University of Victoria, British Columbia, and former President of the Institute for Research in Public Policy.

 1.  Charles Taylor, Reconciling the Solitudes (Montreal and Kingston: McGill- Queen’s University Press, 1993) and The Malaise of Modernity (Concord, Ont.: Anansi, 1991).

 2.  Council of Ministers for the North American Agreement on Labor Cooperation. Four-Year Review of the North American Agreement on Labor Cooperation, 1998. Available on the Commission’s website, www.naalc.org .

 3.  Independent Review Committee. Four-Year Review of the North American Agreement on Environmental Cooperation, 1998. Available on the Commission’s website, www.cec.org.

 4.  Douglas M. Johnston, Consent and Commitment in the World Community (Irvington-on-Hudson, NY: Transnational Publishers, 1997).

 5.  Gunnar Myrdal, The Political Element in the Development of Economic Theory (Cambridge: Harvard University Press, 1954)

 6.  Four Year Review…fn 5. Conclusions of the Council, p. 3. Recent bilateral and multilateral meetings of indigenous groups, including meetings of the Assembly of First Nations (AFN) in Oaxaca in May and with the National Congress of American Indians in Vancouver in July have included discussion of these topics. An approach to a possible program which an organization such as the AFN may wish to initiate has been outlined by Theona Russow in a report submitted in partial fulfillment of the requirements for the MPA degree at the University of Victoria. See “Aboriginal Culture, Government Action and the Global Economy,” School of Public Administration, University of Victoria, August 1999.