3. INTERGOVERNMENTALISM AND THE LIMITED ENFORCEMENT OF THE MERCOSUR DECLARATION
3.1. The socio-labour commission as a social dialogue mechanism
Following in the footsteps of the ILO supervision bodies, and relying upon Article 20 of the Declaration (37) the CMG created the SocioLabour Commission (‘SLC’) as a tripartite auxiliary body, which consists of governments’ representatives, trade unions and employers. The SLC has two main functions: firstly, it examines any consultation related to the implementation of the Declaration, and, secondly, it monitors and enforces the rights recognized in the Declaration. The latter function could be an encouraging sign that the Declaration is a legally binding instrument that can be enforced by a regional body. However, the rather weak institutionalisation of Mercosur has meant that its regional bodies lack decisional authority, enforcement capacities, and an ability to represent the regional common interest beyond and over Member States (38). The implementation of the Declaration has not been an exception. As a result of the business groups’ pressure, the SLC has not been vested with any enforcement powers in the event of the violation of the Declaration (39). This flawed structure constitutes a major weakness in the Declaration enforcement framework and explains, to a large extent, the limited role played by the SLC (40). The creation of an independent supranational institution was put forward to ensure the effectiveness of the Declaration (41). It is true that the 2015-Declaration and the CMG Resolution 22/18, which repealed and replaced the CMG Resolution 12/00 that had set up the SLC, made less ambitious changes.It is true that the 2015-Declaration and the CMG Resolution 22/18, which repealed and replaced the CMG Resolution 12/00 that had set up the SLC, made less ambitious changes. However, this reform strengthened the SLC’s role as a social dialogue mechanism (42). It can design action plans and recommendation projects to foster compliance with the Declaration (Articles 3(f) and 10). Furthermore, it can examine trade unions, employers’ associations, and governments’ requests regarding the scope of the Declaration (Articles 3(g) and 17). Though these opinions are not legally binding, they may impact upon the national authorities’ interpretation of the Declaration. Furthermore, the SLC examines national reports (Memorias) – drawn up by Member States with the contribution of trade unions and employers’ organizations – and suggests possible reforms to national legal orders (Article 29). To conclude, it can be pointed out that the SLC has been one of the most active regional bodies fighting against the Covid-19 crisis by adopting declarations and lobbying to regulate teleworking at the regional level in future reforms43.
3.2. The Ambivalent Role of Mercosur Courts
The main judicial body in Mercosur is the PRC whose primary function is to guarantee a homogeneous interpretation of Mercosur law (44). Unlike its European counterpart, though, the PRC has had a modest activity and remains currently constrained due to its intergovernmental nature and its limited enforcement powers (Article 31-32 PO) (45). Moreover, the lack of direct locus standi in favour of individuals to make claims in the event of breach of Mercosur law, and the need to go through the national section of the CMG and potentially through the CMG to challenge Mercosur law constitutes another major institutional hurdle. Furthermore, Article 25 of the 1998-Declaration and today Article 31(3) of the 2015-Declaration expressly sets out that “States Parties highlight that this Declaration, and its follow-up mechanism shall not be invoked or used for ends other than those established, particularly safeguarding its application to commercial, economic and financial matters.” Therefore, the lack of compliance with the Declaration cannot trigger, for instance, the suspension of tariff advantages (46). It is not surprising that no labour matters have been heard by the PRC. In contrast to this, the Mercosur Administrative-Labour Court, which hears cases related to Secretariat of Mercosur’s and other regional bodies’ employees (47) has delivered four judgments, which have referred to the Declaration. In its judgments 1 and 2 (48), which dealt with different employments issues between the Secretariat of Mercosur and its employees, the Administrative-Labour Court considered that other than the specific regime for Mercosur’s employees, the Declaration, amongst other instruments, was applicable (49). Under a new legislative framework (CCM/Decision 07/07), this approach was followed in its third judgment. Given the incompleteness of the regime of Mercosur’s employees, the Administrative-Labour Court based relied upon the general principles of regional and international law, specifically the ILO Declaration on the Fundamental Principles and Rights at Work as well as the Declaration to deliver its decision (50) . There seems to be an interesting change in the AdministrativeLabour Court approach in its judgment 4 where, unlike previous decisions, the regional tribunal changed the wording in the ‘applicable law’ section and seems to explicitly consider the Declaration as part of the Mercosur’s general principles of law. If this interpretation were to be upheld in future judgments, that would reinforce the notion of the Declaration as a legally binding instrument. This remains to be seen.
3.3. A Stronger Regional Judicial Body: The Way Forward
The role of the judiciary is essential for the enforcement of regional norms and the fostering of regional integration projects. The EU, characterized by ‘political integration by jurisprudence’ (51), has recognised a major role to the Court of Justice of the European Union. Their active role has been crucial to ensure the unity of the regional legal order and its primacy over domestic legal systems (52). This is even more important within embryonic regional organisations (53). Nevertheless, given the intergovernmental nature of Mercosur, their dispute resolution systems remain in hands of their Member States (54). Therefore, regional and national courts face significant challenges to ensure the enforcement of Mercosur norms. Since the transition from intergovernmentalism to supranationalism seems implausible, it is necessary to consider reforms that can be implemented within the current institutional and legal framework. In this regard, locus standi restrictions, which today only allow Member States to bring actions before the PRC, should be eased. Individuals, be it natural or legal persons, need to navigate an extremely complicated procedure to challenge any action or omission committed by any of the Member States. Individuals are not entitled to directly lodge a claim for arbitration. They do not have either direct access to Mercosur tribunals. It is true that individuals may have an indirect access through advisory opinions requests made before national courts (55). Furthermore, individuals can rely upon Mercosur legal instruments before national courts to challenge domestic legislation – as explained in the following section (56). Despite some the internal differences (57), it is possible to enhance the Mercosur dispute resolution system by expanding the ‘access’ dimension (58). There are two possible avenues to bring about this reform: firstly, as put forward in the bill on the Creation of a Permanent Court of Justice for Mercosur (Project No 02/10), which was supported by the PARLASUR in 2017, authorising individuals as well as intermediary bodies, such as trade unions and business organization, to lodge claims against Member States due to failure to comply with Mercosur law, as well as to request advisory opinions would constitute a step forward in the strengthening of the regional legal order (59). It is worth noting that this ‘liberal’ approach vis-à-vis the individual’s locus standi is shared by regional courts beyond Europe (60). Secondly, as far as the Socio-Labour Declaration is concerned, it would be possible to include it within the material scope of the PRC. This would need a procedural reform regarding locus standi, which would authorise workers, employers, trade unions and business organisations to challenge State Parties if they would not comply with the Socio-Labour Declaration.
Notes:
36 See section 3.2.
37 CASTELLO, Alejandro. Op.cit., p. 649.
38 JAEGER JUNIOR, Augusto. “Metodologia Jurídica Europeia e Mercosulista: Considerações Fundamentais”. Revista de la Secretaría del Tribunal Permanente de Revisión. 2014, vol. 2, no.3, p.117-157.
39 DE ALMEIDA FREITAS, Valter, A circulaçao do trabalho no MERCOSUL e na União Europeia. Santa Cruz do Sul: EDUNIS 2009.
40 LOPES RIBEIRO DA SILVA, Walküre. Op.cit., p.366.
41 SCHAEFFER, Kristi. Op.cit. p. 839.
42 CASTELLO, Alejandro. Op.cit. p. 649; ARESE, César, Op.cit. p. 555
43 Mercosur/CSLM/Acta 01/20, 16 June 2020 and Mercosur/CSLM/Acta 02/20, 15 November 2020.
44 OLMOS GIUPPONI, Belén. “Sources of Law in MERCOSUR: Analysis of the Current Situation and Proposal for the Future”, En FRANCA FILHO, Marcílio Toscano et al. (Eds). The Law of MERCOSUR. Oxford: Hart Publishing, 2010, p.57-72.
45 WOJCIKIEWICZ ALMEIDA, Paula. La difficile incorporation et mise en œuvre des normes du Mercosur. Aspects généraux et exemple du Brésil. Paris: LGDJ, 2013.
46 CASTELLO, Alejandro. Op.cit. p., 650.
47 Mercosur/CMG/Resolution 54/03, 10 Dec. 2003 (updated by Mercosur/CMG/Resolution 32/15, 15 July 2015).
48 Judgment 01/2005, Maureen Margaret Mackinnon Gómez c. Secretaría Administrativa del Mercosur, 26 September 2005; Judgment 02/2005, Raulino Carvalho de Oliveira c. Secretaría Administrativa del Mercosur, 23 September 2005.
49 Mercosur/CCM/Decision 30/02, 06 December 2002; Mercosur/CMG/Resolution 42/97, 05 September 1997; and Mercosur/CMG/Resolution 01/03, 04 April 2003.
50 Judgment 03/2015, María del Carmen García c. Instituto Social del Mercosur, 10 December 2015.
51 DABÈNE, Olivier. Op.cit. p., 65.
52 MOLINA DEL POZO, Carlos Francisco. “La importancia de la jurisdicción en la conformación del derecho comunitario. El papel de la jurisprudencia del Tribunal de Justicia de la Unión Europea en la articulación del proceso de integración europea”. Revista de la Secretaría del Tribunal Permanente de Revisión. 2024, vol. 11, no. 21, e529, p. 1-29; MATTLI, Walter & SLAUGHTER, Anne-Marie. “Revisiting the European Court of Justice”. International Organization. 1998, vol. 52, no. 1, p. 177-209.
53 PEROTTI, Alejandro. “Algunos desafíos que presenta la constitución de un Tribunal de Justicia Comunitario”. El Derecho. 2011, vol. 241, p.867-885. 54 GONÇALVES DE OLIVEIRA FERREIRA, Lucas. “Teoria da juridificação de sistemas de solução de controvérsia aplicada a análise de processos de integração regional do Mercosul”. Revista de la Secretaría del Tribunal Permanente de Revisión. 2024, vol. 11, no. 21, e528, p. 1-29.
55 WOJCIKIEWICZ ALMEIDA, Paula. “Access of Individuals to Mercosur Tribunals: Filling the Gap Via Advisory Opinions”. Revista do Programa de Pós-Graduação em Direito da UFC. 2018, vol. 38, no. 2 jul./dez., p. 585-597.
56 GONÇALVES DE OLIVEIRA FERREIRA, Lucas. Op. cit., 21, PUCHETA, Mauro, Op. cit.
57 See: LENZ, Tobias. “Diffusion and Decentralized Bargaining in International Organizations: Evidence from Mercosur’s Dispute Settlement Mechanism”. International Studies Review. 2021, vol. 23, p. 1859–1883.
58 As defined by KEOHANE, Robert, MORAVCSIK, Andrew & SALUGHTER, Anne-Marie. “Legalized Dispute Resolution: Interstate and Transnational”. International Organization. 2000, Vol. 54, No. 3, p. 457-488.
59 See: LONDINSKY, Pablo. “TPR: perspectivas futuras”. Revista de la Secretaría del Tribunal Permanente de Revisión. 2023, vol. 11, no. 20, e498, p.1-15.
60 FRIMPONG OPPONG, Richard. “Legitimacy of Regional Economic Integration Courts in Africa”. African Journal of Legal Studies 2014, vol. 7, p. 61-85.
