Labour Standards in Mega-Regional Trade Agreements: The Case of TPP and TTIP

Abstract

The insertion of labour concerns into trade arrangements is on the rise. An increasing number of bilateral and regional trade agreements embody labour standards-related provisions and often allow them to be enforced through the agreements’ dispute settlement mechanisms. However, the question as to whether such provisions in fact translate into concrete improvements of workers’ rights is controversial. This issue has gained additional relevance through the negotiations of Mega-Regional Trade Agreements, such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). The present paper analyses how labour standards concerns have been addressed in the TPP and the TTIP negotiations and what practical effects this may entail. It proceeds as follows: Section I provides an overview of existing regulatory approaches regarding labour provisions in trade agreements. Section II turns to the recently concluded negotiations of the TPP as well as to the ongoing TTIP negotiations. It looks at key lines of division that have characterised the negotiations and outlines features that the respective labour provisions contain or are likely to contain. Based on evidence from existing trade agreements, Section III then inquires into what can be expected of the labour provisions in the aforesaid Mega-Regional Trade Agreements in terms of effects on the parties’ labour standards. The final section concludes by suggesting that more innovative approaches regarding the design and implementation of the labour provisions could be explored than has so far been the case. It also notes that the labour provisions, as they currently stand, will hardly be able to ensure that the agreements’ other provisions, including those on trade and investment, do not undermine working and living conditions in the parties’ territories in the midand long-term. 1 Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg. The author is grateful to Lorand Bartels, Pablo Lazo Grandi as well as the participants of the Conference hosted at the University of Dresden 23 and 24 October 2014 on “Mega-Regionals and the Future of International Trade and Investment Law” for valuable comments and suggestions. All remaining errors are mine. Parts of the paper draw on earlier work published jointly with Anne Posthuma, in particular Franz Christian Ebert and Anne Posthuma, ‘Rebalancing Globalization: The Role of Labour Provisions in Existing International Trade Arrangements and Development Finance Policies’ in Raymond Torres (ed), World of Work Report 2009. The Global Crisis and Beyond (ILO 2009); Franz Christian Ebert and Anne Posthuma, ‘Labour Provisions in Trade Arrangements: Current Trends and Perspectives’ (2011) IILS Discussion Papers Series 205 accessed 14 November 2015. It also draws on a study which the author carried out for the ILO, published in 2013; ILO, ‘The Social Dimension of Trade Agreements’ accessed 14 November 2015, as well as on Franz Christian Ebert, ‘Labour provisions in EU trade agreements: What potential for channelling labour standards-related capacity building?’ ILR 2016 (forthcoming); advanced draft available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1564-913X.2015.00036.x/abstract. It goes without saying that none of the views expressed in the present paper should be attributed to the ILO. All comments on this work in progress are welcome at ebert@mpil.de.