Labour Provisions in Trade Agreements

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There has been a significant increase of provisions dealing with labour standards in trade agreements (labour provisions). Will these labour provisions improve labour standards? This article takes up this question in relation to the ‘Labour’ chapter of the Comprehensive Progressive Trans-Pacific Partnership (‘CPTPP’). This chapter provides the crucial test for whether labour provisions (as currently framed) will improve labour standards, having been hailed by the United States government as providing ‘the strongest protections for workers of any trade agreement in history’. Contrary to rhetoric accompanying this chapter, this article argues that it is a form of neoliberal regulation – faux regulation. It stands forth as an example of such legalised minimalism for three reasons. First, it provides for flexible standards particularly through its heavy reliance on rights recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. Second, it lays down standards for flexibility through non-existent standards, liquid-soft obligations, and heavily qualified obligations. But third, the evidence shows that the parties to the agreement either have not ratified the core ILO Conventions on which the labour principles are based, or (using freedom of association as a case-study) are in breach of these obligations, sometimes in quite significant ways. The extent of non-compliance at the point of commencement raises serious questions about the integrity and purpose of the ‘Labour’ chapter. These reinforce the sense that the chapter is a form of faux regulation in which the parties have deliberately constructed a system of Mutually Assured Non-Compliance. The article concludes by sketching out the broader implications of its analysis for other labour provisions and identifying ways to go beyond faux regulation.