An active civil society is essential for any system in which governments are held accountable. Civil society groups are the challengers and communicators in a system which permits government to be challenged. They force governance issues into the open. But civil society can easily be thwarted by regulators, administrators, and others who are intent on preserving privileges or skewing priorities away from rule of law. Civil society needs certain corresponding elements to be in place in order to be effective.
In a recent essay I examined the effects of two new opportunity structures on the capacity of civil society to hold the Mexican government to account. The opportunity structures are the so-called “side agreements” of the North American Free Trade Agreement (NAFTA), which entered into force in 1994. The institutions created by these side agreements were minimalist but their purpose was very clear – to require member states to comply with their own environmental and labor laws. They each established a review body mechanism by which civil society could bring complaints when they felt their government was not complying with relevant law.
Mexican environmental and labor groups quickly teamed up with better funded and more experienced counterparts from the US and elsewhere. They began to develop legal capacity for the first time. Together they formed coalitions to bring cases to the NAFTA review bodies, which exposed regulatory processes and standards which were sidestepped or not conducted properly (typically environmental impact assessments on the one hand and freedom of association and other labor rights on the other). Subsequent fact-findings investigations, reporting, and publicity by the side agreement review bodies rebounded back into the Mexican regulatory milieu with powerful pro-compliance shaming pressures. But the implementing authorities at domestic level were not always willing to accept the results of these investigations. Environmental regulators became early champions of compliance, while labor regulators continued to resist.
The puzzle is why. My argument is that the effectiveness of civil society legal mobilization was predicated on the willingness of domestic agencies (often at quite a remove) to implement findings issued by these external bodies, and this willingness in turn was structured by domestic institutions and practices. Two factors in particular conditioned acceptance of compliance norms: 1) institutional structure and 2) levels of technical professionalism.
When the Message Hits Home
Regulatory compliance varied firstly because of historically-rooted differences in institutions and practices. Mexican environmental governance changed dramatically beginning in the late 1980s. Institutional responsibility for the environment evolved from a minor under-secretariat in 1990 to a full Cabinet-level ministry in 1994. By 2007 it had about 30,000 employees. A new enforcement agency and specialized agencies on biodiversity, protected areas, and forests, among others, were established.
This very expansion meant that it was more open (to ideas, to employees, to the outside world) than the labor agencies. New rules, new agencies and new officials were unconstrained by the legacy of hidebound and sclerotic rent-seeking interests which are so apparent in labor governance. After a rocky start in which environmental agencies also excluded critical interests, they opened up and accepted civil society participation, even when it was critical.
On the other hand, labor institutions are deeply rooted in Revolutionary ideals. The Constitution afforded highly detailed and very strong protections to workers. Workers were organized into co-opted unions and confederations in which wages and social benefits were guaranteed, but employee demands for more choice in how they were organized and who represented them were always repressed. A ‘triángulo de hierro’ was created between employers, who wanted to control costs; the state, which wanted to attract investment (and therefore control strikes and unwarranted demands); and union leaders, who purported to represent workers but in reality helped to maintain this delicate balance in exchange for public offices, concessions and other privileges. Regulatory compliance was not the objective, and those arguing in favor of it had no access whatsoever to those in power, either in the agencies or in the co-opted confederations.
The key institutional components of this system are the federal labor ministry (STPS), established in 1941, and the federal and state Conciliation and Arbitration Boards (CABs). The principal labor umbrella organization is the CTM (Confederation of Mexican Workers), though other confederations exist too. At state level, the CABs register unions and serve as tribunals, addressing disputes between workers and employers. At the federal level, unions are registered with the STPS but disputes are resolved in the federal CABs. CABs are governed by three representatives – one from the relevant state or federal government, one from business, and one from labor.
Unions wishing to represent workers in a given workplace must first register with the relevant authorities, at which point they are eligible to compete in a recuento, or vote, for representation rights in the workplace. Independent unions which seek to promote genuine workers’ rights do exist, but the reason they find it so difficult to register or to gain representation in a workplace is that none of the official CAB representatives wants this to occur. In fact, the labor representative on the CABs invariably comes from one of the major co-opted union confederations such as the CTM. Thus, the historical legacy in which co-opted state-linked labor confederations play a key role in decisions on worker representation is important because it enabled them to block changes in representation, even when that was contrary to the law.
In addition to these institutional differences, environmental groups were more successful at communicating with and convincing environmental regulators than their labor counterparts were with labor regulators. Their interaction was more technical and less political. Their common training, interaction, and job-hopping socialized regulators into pro-compliance behavior. High-level NGO personnel and agency officials came to their positions with graduate degrees in natural sciences, law, and other technical areas. Thus, legal mobilization resulted in more successful compliance socialization in the environmental area in part because of common experiences of capacity and training, which facilitated technical communication.
A culture favoring scientific and legal capacity in environmental governance was apparent from the early 1990s in a series of consulting reports by Booz Allen & Hamilton, which spelled out the scientific and technical capacities required in the National Ecology Institute (one of Mexico’s federal environmental institutions), including the levels of education for certain positions and the types of degree that should be attained by managers. The report called for stronger scientific and technical capacity in the agency to improve governance. The underlying logic for professionalizing the agencies was the need to base regulatory standards on best available scientific evidence.
Environmental NGOs also became more professionalized as regional councils were formed to foster communication between the environmental authorities and civil society groups. Numerous independent experts and respected analysts consistently and credibly testify to the professionalization of environmental NGO staff. The most important environmental groups are led by individuals with master’s degrees, law degrees, or PhDs. In addition, mobility is widespread between federal environmental agencies and environmental NGOs. Social and professional interaction has brought NGO officials and government officials very close to a meeting-of-the-minds on rule of law norms. NGOs and bureaucrats alike are more comfortable with the law; and this has an impact on compliance.
In contrast, Mexican labor politics remains a murky world of institutionalized conflict of interest and influence-peddling. Labor agency officials do not welcome critical voices from civil society or external scrutiny. Trained, professional labor lawyers and NGO officials advocating due process faced narrow interests and captured, rent-seeking bureaucrats which operated according to a different logic – one in which investment was to be encouraged above all else, and the profits shared among those who turned a blind eye to legal infringements. The transnational network of trained labor NGO activists (which includes Mexicans), has no influence over labor bureaucrats, especially within the local labor boards. This undermined the process of compliance socialization.
It would be untrue to say that there is no professionalization or technical capacity – indeed in certain respects it has increased – but when it comes to legal challenges, those who pose the challenges are met with a solid wall of obstruction. Labor and business representatives on the CABs had much to lose if new unions were allowed to register and represent workers, and they were steadfastly opposed to recognition of new unions and organization of workers by those unions. Unlike in environmental agencies there was no movement of personnel who carried pro-compliance norms. Positions on labor boards were politicized, not technocratic.
But the problem was deeper than corrupted special interests. Levels of professionalization were low. In a report on foreign labor trends, the US Department of Labor and US Embassy in Mexico showed that very few labor leaders at national or state level had achieved as much as an undergraduate degree. As repeated fact-finding investigations made clear, local CAB officials often have a weak understanding of the law they were supposed to be upholding. Moreover, they have little incentive to professionalize, since what matters for them are connections. Rather than acting as neutral arbiters, many respond directly to state government officials who wish to promote inward investment. The result is that norms of nationalism and clientelism have not been supplanted by a pro-compliance norm.
The experience of Mexican civil society tells us much about what works and what doesn’t work when it comes to designing international rules that include opportunities to challenge governments. Domestic civil society played a critical role as carriers of norms and information between the NAFTA institutions and Mexican agencies. They were plugged in at both levels: they argued their cases, got involved in complaints, communicated with each other and with public officials, cajoled and persuaded, and held behavior up to the light. And they sharpened the divide within Mexico between those in favor of compliance, and those in favor of development and sovereignty. How environmental and labor officials reacted to this growing gulf tells us much about Mexican politics today. Environmental officials embraced troublesome NGOs and welcomed public participation, even when it was critical. Labor officials sought to keep independent civil society groups at bay.
Iterated mobilization provided benefits to litigants and to the public interest. Civil society groups built capacity and increased compliance pressure. But the pro-compliance effect was mitigated by domestic institutions and traditions. Some regulators and administrators were willing to take on new messages about compliance, others not. The most important policy lessons from this study are that efforts to improve norms of good governance should include 1) parallel horizontal accountability institutions at the national level such as transparency authorities and independent judiciaries which reinforce external normative pressures; 2) education and training programs for civil society actors and bureaucrats; 3) opportunities for inward mobility into bureaucracies for trained NGO personnel; 4) more secure (depoliticized) career paths for senior civil servants to retain technical capacity within government.
 ‘Instituciones, sociedad civil y estado de derecho’ Política y Gobierno, Vol. XXI, Núm. 1, Primer Semestre de 2014, pp. 55-93. See also my book Side Effects: Mexican Governance under NAFTA’s Environmental and Labor Agreements (Stanford, CA: Stanford University Press, 2013). This was translated by Editorial CIDE in 2014 under the title Efectos Paralelos.