Labor Provisions Research Articles

Labour provisions in EU trade agreements: What potential for channelling labour standards‐related capacity building?

AbstractThe labour provisions of the EU's trade agreements have been of limited effectiveness as a means of enforcing labour standards within the jurisdictions of the respective parties. However, the author argues, these provisions could serve other useful purposes in this regard. In particular, he focuses on their potential as a framework for channelling capacity‐building activities relating to labour standards through the EU's development cooperation instruments. He also considers options for increasing the potential effectiveness of labour provisions in framing capacity‐building activities through a change in their design, particularly by reducing the parties’ discretion in applying the relevant provisions.

Promoting labour rights in the global economy: Could the United States’ new model trade and investment frameworks advance international labour standards in Bangladesh?

AbstractInternational free‐trade or investment agreements offer great potential for improving labour standards. But that potential is far from realized. Compared with earlier models, the strengthened labour provisions of the United States’ recent trade agreement with the Republic of Korea mark a definite improvement, but the author questions their effectiveness, not least because the rights they purport to protect are specifically framed (somewhat loosely) in terms of the ILO Declaration of 1998 rather than the fundamental Conventions that underpin it. Enforcement mechanisms are also questionable. He considers what would need to be done to ensure that such agreements genuinely contribute to raising labour standards globally.

The Protection of Labour Rights in Trade Agreements: The Case of the EU-Colombia Agreement

In response to the disappointing progress at the multilateral level, trading powers like the European Union (EU) have increasingly used their market access power as leverage to promote non-trade objectives with third countries. Through so-called ‘Trade & Sustainable Development Chapters’, the EU’s new generation of regional and bilateral trade agreements include explicit provisions on labour rights promotion, Corporate Social Responsibility and environmental sustainability. While legal scholars have commented extensively on these provisions, little is known about their practical application. With regard to labour rights in particular, the International Labour Organization has noted the lack of empirical evidence on the effects of integrating labour rights provisions in trade agreements. Based on extensive desk research and a series of interviews in Brussels and Bogotá, the present article aims to bridge this gap by providing insights into how the practical application of labour provisions and monitoring mechanisms plays out in a particular country context. Our findings identify significant shortcomings in both the design and application of the current sustainability chapters, affecting not only their effectiveness but also the credibility of the EU as a normative actor as a whole.

Labor Implications of TPP

The Social Dimension Labor Provision of the Transpacific Partnership (TPP) indeed represents the “Next Generation” in Free Trade Agreements (FTAs) and is possibly a “game changer” in the several Asian countries with TPP-side agreements with the U.S. As one of the few countries in the world that includes labor provisions in FTAs with Asia-Pacific countries, the U.S. in the TPP has built on its past FTA labor provisions and through its side agreements on labor with Vietnam, Malaysia, and Brunei to advance new and higher labor standards. The significance of the Side Agreements cannot be over-emphasized. As always, the proof is in the actual enforcement and, in the author’s opinion, future scrutiny should be on making enforcement meaningful. In the interim and final analysis, it may well be up to the economists to proclaim a conclusion on its economic impact and its success or failure.This paper places discussion of the TPP in the context of addressing the growth of FTAs and the limited use of social dimension provisions on labor, particularly with many Asia- Pacific countries, thus highlighting the progressive measures on labor protections undertaken by the TPP and how it fits with emerging developments in the region. This discussion is followed by identifying new research agenda implicated by TPP labor provisions and its side agreements and, providing analyses to the challenges and opportunities they present. Finally, in the conclusion, summaries, suggestions, and challenges to other disciplines will be made.

Modificación de la Declaración Sociolaboral del Mercosur (2015): un avance en la construcción de la dimensión social del proceso de integración

This contribution analyzes the role fulfilled by International Labor Standards and, specifically, by social clauses in Free Trade Conventions and Agreements, as a way of preventing social dumping and building a social dimension in the globalization and regionalization of economy. The author offers the case of the MERCOSUR Labor and Social Declaration, issued in 2015, which amends that of the year 1998, studying its contents, legal efficacy and supervision mechanisms. He emphasizes the fact that social charters generally limit themselves to recognizing fundamental or basic labor rights already found in the legislation of the member countries, but which are nonetheless useful for hindering attempts to deregulate or relax social and labor provisions.

Labor Standards in U.S. Trade Politics

This article shows that since the early 1990s the inclusion of labor standards in trade agreements and the accordance of the national labor laws and practices of the trading partner with international standards have been a necessary condition for U.S. trade liberalization. If Democrats and Republicans were unable to reach agreement over the linkage of trade and labor, a liberal trade policy was difficult to achieve regardless of unified or divided government. On the other hand, a liberal trade policy became possible even under divided government if Democrats and Republicans agreed on labor provisions for trade agreements. Furthermore, the controversy over labor standards in trade agreements changed the relation between the President and Congress, because Congress increasingly acted as dominant trade policy maker not only in domestic politics but also in international negotiations.

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

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.

EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions

Surprisingly, labour provisions in EU bilateral trade agreements have widened and deepened over the past decade. One would have expected the opposite, given the coming to power of centre-right governments in the early 2000s and a stronger liberalization agenda since 2006. This article addresses this rather remarkable development. First of all it dismisses the argument that protectionist motives underlie the stronger social clauses in EU trade agreements. Instead, drawing on the theory of the life-cycle of norms, it suggests that social trade has become an unobjectionable norm within the EU. The article then offers several explanations for why the social-trade nexus has been barely disputed, and indeed has further expanded through subsequent trade arrangements. These include the stronger influence of the European Parliament, path-dependencies stemming from the EU’s previous template, and the need to gain public support in the face of criticism of free trade agreements. Most importantly, it stresses that the framing of core labour rights as part of a broader ‘sustainable development’ agenda has contributed to their unobjectionable status. While this framing has helped to forge a consensus with regard to the social trade agenda, giving equal status to labour and environmental provisions under the sustainable development umbrella might also have adverse consequences for the concept of labour provisions.

Labour Provisions in Preferential Trade Agreements: Potential Opportunities or Challenges to Vietnam?

In this research, we discuss the impacts of labour provisions in preferential trade agreements (PTAs) to which Vietnam is a party in aspects of politics, institutions, law and economy. We find that the impacts are a mixture of both positives and negatives. Positive effects include a more and more developed and well-established domestic labour legal framework, stronger domestic political commitment to labour reforms, more stabilized political environment, higher level of labour protection, higher wages, better working conditions and better life, higher productivity and competitiveness of goods and services and more foreign direct investment. Negative effects include potential political risks of state sovereignty weakening, reduction in competitiveness because of rising labour costs and undermined trade and economic growth resulting from trade-based sanctions in labour disputes. Both positive effects and negative effects exist as possibilities and whether they are materialized and which of them outweighs depend on reactions taken by Vietnam. Proposals for Vietnam to benefit from labour commitments include improving the domestic labour law system and efficiency of state administration and enforcement of domestic labour law, changing the economy from factor-based to efficiency-based status, making relevant institutional reforms, introducing the trade-related labour topic into the academic setting, performing studies on the impacts of labour provisions in PTAs, set up strategies and tactics in PTAs’ labour negotiations, joining forces with other trade partners of the same interest, effective exploitation of cooperation mechanisms in PTAs and proposing S&D treatment for developing countries.

Pushed out the Door, Back in through the Window: The Role of the ILO in EU and US Trade Agreements in Facilitating the Decent Work Agenda

Although the debate on the inclusion of labour provisions in trade agreements seemed to be closed after the multilateral trade negotiations in the late 1990s, it is revived in the current negotiation of the EU–US Transatlantic Trade and Investment Agreement (TTIP). TTIP negotiations are of particular importance in this regard as the agreement is believed to set the norm for future negotiations. This paper examines the evolution of labour provisions in the EU and US trade agreements in the past two decades. It finds that: First, labour provisions are increasingly included in trade agreements of the US and the EU. Second, ILO instruments are the main reference here, and they often include an explicit reference to the decent work agenda. Third, reference to the role of the ILO in the implementation of labour commitments is less explicit, but leaves the door open for involvement in various ways, mainly through technical cooperation activities, monitoring or via a consultative role in dispute settlement mechanisms.The analysis leads to the conclusion that whereas the trade–labour linkage and the role of the ILO in trade may have been pushed out of the multilateral trade system, the discussion revived in the framework of pluri-lateral trade negotiations.

The Diffusion of Labour Standards: The Case of the US and Guatemala

The number of free trade agreements (FTAs) concluded by the United States of America (US) has grown vastly over the past two decades. While FTAs contribute to increased global competition and as such may also contribute to socially-undesirable practices in the area of working conditions and the environment, the proliferation in FTAs has paradoxically also augmented the potential for making free trade more fair as some of these agreements now include labour provisions. However, the question is whether these trade agreements have also actually diffused internationally recognised labour standards. This article studies the FTA the US signed in 2004 with a number of Central American countries and which, at a later stage, also included the Dominican Republic. This FTA is commonly referred to as CAFTA-DR and includes a chapter on labour standards. The article argues that the effects of the inclusion of labour standards in CAFTA-DR have been limited and therefore should be viewed as an unsuccessful attempt at policy transfer. This is illustrated by the case of Guatemala, a country known for its lack of respect for labour standards and which is currently the subject of a complaints procedure under the CAFTA-DR. It is maintained that this lack of effectiveness is the result of many factors. Among these is the weakness of the labour chapter of CAFTA-DR resulting from the fact that the chapter is the outcome of bargaining processes both within the US and between the US and Guatemala, where symbolic results were valued more highly than actual substance.

Opinion: For whom does a labour chapter work?

INTERNATIONAL union rights Page 22 Volume 22 Issue 1 2015 OPINION ❐ TRADE AGREEMENTS What does the CAFTA-DR labour dispute tell us about the potential to protect labour standards in TTIP? establish that the alleged violations (which it insists are unsubstantiated) cannot amount to a breach of CAFTA-DR Article 16.2.1(a), namely ‘a failure to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties’. The Guatemalan government argues, inter alia: (i) that the action or inaction of the relevant bodies (including labour courts) is outside of the scope of the provision, which covers only the executive branch of government (para. 181); (ii) that in order to qualify as ‘sustained or recurring’ a course of action or inaction must ‘have formed part of a deliberate policy of neglect… with the intended consequence of having an effect on the exchange of goods or services among all of the States that are part of CAFTA-DR’ (para. 273); and (iii) that trade between the Parties has, in any case, not been affected (para. 472). Whatever the merits or otherwise of these interpretations , what is abundantly clear is that the labour provision in CAFTA-DR is by no means a juridical panacea for the enforcement of labour standards among its members. The panel is chaired by Canadian labour law professor Kevin Banks, but as Guatemala has been keen to point out, CAFTA-DR is a trade agreement, not a labour agreement. And the language of the provision reflects this. However, there are limits to this case that do not derive from the legalese of the text alone. The systematic use of violence against trade unionists has been – somewhat dubiously – omitted from the US submission. Seven members of the Guatemalan Izabal Banana Workers’ Union (‘SITRABI’) have been murdered since 2008 when SITRABI co-signed the CAFTA-DR complaint , and a total of sixty-four union leaders have been killed in Guatemala since 2007. Apparently, the USTR does not consider such matters as violations of the CAFTA-DR labour chapter. As a result, the failures of the Guatemalan authorities to investigate these deaths or prosecute those responsible for them will not feature in the current dispute. Trade agreements are for trade, labour chapters are for…? During the negotiations and signing of CAFTADR , national unions across all of its member countries opposed the agreement. Between 2002 and 2005, numerous mass demonstrations took place in Guatemala demonstrating against its potential impacts. The ITUC joined this opposition1 . Even Barack Obama opposed CAFTA. Opposition focused not only on labour standards , but also on the effects of trade liberalisaT he case against Guatemala under CAFTA-DR (the Dominican Republic-Central America Free Trade Agreement), initiated in September 2014, is the first labour dispute under a trade agreement to proceed to arbitration. Guatemalan unions, in cooperation with the American Federation of Labor and Congress of Industrial Organizations (‘AFL-CIO’), lodged their first complaints through the CAFTA-DR mechanism in 2009, alleging gross violations of labour rights in Guatemala. It has taken more than six years from that date for the US Government to initiate the proceedings, following repeated delays, extensions, and abandoned attempts at consultations with the Guatemalan government. This landmark moment provides a useful opportunity to consider the potential for including labour rights provisions in free trade agreements . The allegations against Guatemala have been widely reported: unions have long highlighted widespread anti-union discrimination and the murder of trade unionists, and in 2014 the ITUC ranked Guatemala one of the worst places in the world for workers. For workers in the EU, such horrors might seem far removed, but with the race under way to create the mega-regional Transatlantic Trade and Investment Partnership (‘TTIP’) – and with it, a new and expansive world of trade-related regulation – the question of whether labour provisions in trade agreements actually work (and for whom do they work) is worthy of some critical reflection. The action and inaction of Guatemala (and the US) The US has negotiated labour provisions into 13 FTAs – with 19 partner countries – over 22 years, each with some degree of enforceability. The United States...

Making the World Safe for Workers: Labor, the Left, and Wilsonian Internationalism, by Elizabeth McKillen

Making World Safe for Workers: Labor, Left, and Internationalism, by Elizabeth McKillen. The Working Class In American History series. Chapaign, University of Illinois Press, 2013. xiv, 299 pp. $55.00 US (cloth). The failure of European socialist parties to oppose and effectively curtail movement toward world war in 1914 has long haunted labour and left history. Instead of resisting cry for war, most socialist and labour parties supported war, even while some publicly opposed a conflict that lasted more than four years and cost twenty million military and civilian lives. In United States, story differs, both due to its late entry into war but also opposition of majority of Left to Wilson's claims that war would make world safe for democracy. While some, such as American Federation of Labor President Samuel Gompers, would support military preparedness and US participation in war, majority of socialists, union activists, and labour radicals opposed US interventions, first in Mexican Revolution and later in the European War. After World War I, labour movement, despite massive strikes, lost influence and visibility. As far as most understand, Left had little power in making or sustaining of peace in post-war world. Flistorian Elizabeth McKillen's book, Making World Safe for Workers aims to change story and to broaden understanding of Left's role in abortive wartime negotiations, international labour cooperation, and in making of Wilsonian peace. The 1919 Versailles Treaty notwithstanding, conservative American labour supported Versailles Treaty, League of Nations it created, and International Labour Organisation (ILO). Significant voices on US Left and in labour movement opposed Treaty and ILO. McKillen argues for importance of political divisions in Labor Left, their implication for US foreign policy, and for labour's role in US failure to ratify Treaty and join League of Nations. McKillen shows us that what has been attributed to conservative opposition to Wilson's internationalism--the failure of Congress to ratify Treaty and participation in League of Nations--was not just product of Henry Cabot Lodge and an isolationist Congress. Rather, McKillen asserts, labour provisions of Versailles Treaty, lack of democracy in League and ILO, and ILO's founding labour principles (rightfully seen as undermining labour rights) were central to failure of public support for Wilson's foreign policy. His internationalism, as seen from a Left perspective, re-inscribed subordination of labour and endorsed capitalism and imperial rule. Another aspect of McKillen's research reiterates importance of American Federation of Labor (AFL) and its president Samuel Gompers in reshaping labour relations in World War 1 era. Throughout book, one is struck with how Gompers's political ambitions, and visceral hatred of his opponents in Industrial Workers of World (IWW) and Socialist party, undermined labour unity and did heavy damage, not least to Wilson's efforts to successfully connect with European socialists and trade unionists. …

Comparing US and EU labour governance ‘near and far’ – hierarchy vs network?

ABSTRACTThis article investigates how the European Union (EU) and the United States of America (US) govern labour provisions in Mexico and Morocco. Drawing on the external governance approach and distinguishing between governance through hierarchy and governance through network, it aims to assess the extent to which the EU and US enforce labour provisions by hierarchical means and promote them through horizontal, network-based interaction. In doing so, this study not only sheds light on the de jure component (i.e., modes of labour governance in preferential trade agreements), but also analyses the de facto dimension (i.e., modes of labour governance at the domestic level). The article reveals that the EU and US de jure rely on hierarchical and networked means while de facto they generally emphasize the latter. Hence, contrary to what a power-based hypothesis would suggest, structures of power do not determine EU and US external governance of labour provisions.

Protection of Labor Rights through FTAs: The Practice of Labor Provisions in U.S. FTAs

Protection of Labor Rights through FTAs: The Practice of Labor Provisions in U.S. FTAs

Does dialogue work? The effectiveness of labor standards in EU preferential trade agreements

ABSTRACTWhile both the European Union (EU) and the United States (US) include labor standards in their preferential trade agreements (PTAs), they pursue different approaches in enforcing these standards. The US relies on coercion while the EU prefers a softer, no-sanctions approach. Are both effective in improving labor rights in partner states and what are the mechanisms leading to this improvement? Recent evidence suggests there is a positive ex ante effect of US labor provisions as PTA partners improve their labor conditions prior to signing an agreement to satisfy the US constituent preferences. Building on this scholarship, we argue that the effect of EU standards will also be positive but exhibited ex post as a result of learning by civil society actors during the implementation phase of labor provisions. We test and confirm this argument by estimating an ordered probit of the protection of labor rights in EU trade partners before and after signing a PTA.

Regional Trade Agreements with Labor Clauses: Effects on Labor Standards and Trade

An increasing number of regional trade agreements (RTAs) include “labor clauses” that require or urge the signatory countries to commit to maintaining a certain level of labor standards. This paper, starting by classifying more than 200 currently effective RTAs depending on the nature and extent of labor provisions, empirically analyzes the effect of a RTA with labor clauses on domestic labor conditions in the signatory countries as well as the effect on trade growth between the countries, using data for up to 220 countries for the years 1995 through 2012. The study finds that (i) intensive trade with the partner(s) of a labor-clause-inclusive RTA may have a positive impact on labor earnings that concentrate on middle-income countries; but also that (ii) labor clauses may reduce the trade-promoting effect of the RTA for the middle-income countries, especially when the RTA partner is a high-income country. These results offer a policy implication that the inclusion of labor clauses in a trade agreement should involve non-negligible costs for possible benefits that may not be expected for every country.

Mexico’s Supreme Court: Between Liberal Individual and Revolutionary Social Rights, 1867-1934 by Timothy M. James (review)

Reviewed by: Mexico’s Supreme Court: Between Liberal Individual and Revolutionary Social Rights, 1867-1934 by Timothy M. James Joseph L. Scarpaci Mexico’s Supreme Court: Between Liberal Individual and Revolutionary Social Rights, 1867-1934. Timothy M. James. Albuquerque: University of New Mexico Press, 2013. xvi + 168 pp., notes, selected bibliography, and index. $45.00 cloth (ISBN 978-0-8263-5378-8). A good argument can be made that the French, American, Cuban, and Mexican revolutions shifted fundamental liberal thought in myriad ways. However, less is known about the legal and judicial systems that drove those social experiments. In this work, historian Timothy M. James seeks to understand why the 1917 Mexican Constitution did not immediately trigger labor and agrarian reform. The topic is unusual because Mexico is not particularly known for its constitutional jurisprudence. Although the Porfiriato era regularly ignored the protection of constitutional rights, little research has addressed why there was nearly a three-decade lag in implementing the full guarantees of the Mexican Revolution. Jurisprudential sources include the writings of jurists, legal professionals, and federal tribunal writings. In turn, they frame and grant protection to constitutional rights. James argues that constitutional social rights have been unduly focused on legislative versus judicial matters. In doing so, claims James, scholars “have failed to appreciate the many ways in which legal changes brought about by the judicial interpretation have been concealed by legislative continuities, or they have failed to register the way continuities in judicial interpretation could present an obstacle to the implementation of new legislation” (p. xii). In other words, to reduce the study of law (anywhere) to only legislation produces glaring oversight in the literature about the Mexican Revolution, and that means understanding how the Supreme Court foot-dragged in implementing socioeconomic rights. Behind the court’s resistance to social change are, not surprisingly, large Mexican landowners, key industrialists, shipping tycoons, and other stakeholders who sought to preserve the status quo (scholars interested in the current U.S. Supreme Court under Justice Roberts will note similarities). Constitutional procedures that protect individual liberal rights (called amparo in Spanish) take hold firmly in Mexico in the last third of the nineteenth century, and anchor the early period in the book’s subtitle (1867). James traces the institution’s history brings the reader forward to the beginning of swift economic reforms of President Lázaro Cárdenas’ (1934-40) sexenio. [End Page 239] Four brief chapters and a conclusion frame this book. The work begins with the “Judicial Protection of Constitutional Rights during the Porfiriato” to set the stage for understanding the challenges of jurisprudence in Mexico. James approaches this period by sub-dividing them into four time frames and outlining key judicial acts that molded the use of amparo. Chapter Two, “From the Plan of San Luís Potosí to the Constitution of 1917,” describes, among other highlights, the relationship that Francisco Madero had with Emiliano Zapata. Mexico’s Supreme Court continued with its appointment of federal judges as it had done during the Porfiriato, and the appointments mirror the upper-class background of U.S. and European-educated Madero. Despite the 1910 Revolution, little substantive social and economic reform takes root in years immediately thereafter. Chapter Three hones in on a particular labor provisions (Article 123) and describes how the more unionized northern states were more successful in implementing labor reforms. Elsewhere, though, new labor provisions were thwarted by court rulings. The topic of the final substantive chapter is “The Third Revolutionary Court and Legal Obstacles to the Implementation of Article 27.” At the heart of this chapter is the implementation of the agrarian reform laws, which would have resounding effects throughout the nation if fully implemented. Alas, “the fate of an autonomous judiciary in the immediate post-Revolutionary period remained a prisoner to amparo’s nineteenth century evolution” (100). Three of the four chapters in Mexico’s Supreme Court were previously published, which begs the question of why an academic press –most of which are in dire fiscal straits—would print this book. The answer is plainly that most of them were published in obscure (for English-reading and non-legal scholars) Mexican law journals. This short tome...

Focus: Labour rights and trade: raising standards for workers?

INTERNATIONAL union rights Page 3 Volume 21 Issue 3 2014 FOCUS ❐ TRADE AGREEMENTS AND THE LABOUR MOVEMENT Labour Rights and Trade: Raising Standards for Workers? Labour rights provisions in trade agreements have become more commonplace JEFFREY S. VOGT is Legal Advisor in the Department for Human and Trade Union Rights with the International Trade Union Confederation in Brussels imposed if a country fails to take the actions recommended by the arbitration panel. The approach taken by the EU in recent agreements is markedly different. While EU trade agreements include somewhat stronger standards than US agreements, EU ‘enforcement’ mechanisms are based entirely on dialogue and contain no dispute mechanism should that fail. The labour provisions in recent EU trade agreements, such as the EU-Korea FTA or the Comprehensive Economic and Trade Agreement (‘CETA’) between the EU and Canada require each party to ‘seek to ensure that those laws and policies provide for and encourage high levels of … labour protection, consistent with the internationally recognised standards or agreements’ and ‘shall strive to continue to improve those laws and policies ’. The concept of ‘labour’ is broader than in the US, as it also refers to the ILO Decent Work Agenda, which also contemplates social protection , social dialogue and job creation. The parties also ‘reaffirm the commitment’ under the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, as well as to commit, in accordance with their membership in the ILO and the ILO Declaration on Fundamental Principles and Rights at Work to ‘respect, promote and realise’ in their laws and practices the principles concerning the ILO fundamental rights. The parties also reaffirm their commitment to effectively enforce those ILO conventions that each party has already ratified and commits to ‘make efforts’ to ratify the fundamental and ‘up-to-date’ conventions. As to implementation and enforcement, the EU-Korea FTA, for example, requires the parties to commit to ‘reviewing, monitoring and assessing the impact of the implementation’ of the agreement. It also requires a civil society forum to be convened each year including representatives from ‘domestic advisory groups’, which include labour representatives. A party may request consultations and parties are to ‘make every attempt to arrive at a mutually satisfactory resolution’. If the party wants to press the matter further, it may request that the Committee on Trade and Sustainable Development be convened to find a resolution. If that fails, a panel of experts may be convened, which will examine the matter and issue a report with recommendations . However, if the party complained against refuses to act, there is no enforcement mechanism under the agreement to compel compliance. Under the CETA, a provision is included to review the effectiveness of the implementation of the trade and labour chapter, including a possible review of the measures for settling disputes. For good reason, trade unions in the US, EU and Canada continue to criticise the labour proI n 1994, the North American Free Trade Agreement (between Canada, Mexico and the United States) entered into force, marking the first ‘free’ trade agreement to include enforceable labour standards in addition to the numerous commercial provisions. The labour side agreement , the North American Agreement on Labour Cooperation (‘NAALC’), was a last-minute deal brokered by the Clinton White House in an effort to bring sceptical Democrats in the US Congress to support the agreement. It did not require countries to raise their labour standards to a common floor, but instead to enforce one’s own laws as they related to a number of principles, which include what are now defined by the International Labour Organisation (‘ILO’) as fundamental labour rights, and to ‘strive’ to improve those laws over time. The enforcement mechanism is also limited and only violations related to occupational safety and health, child labour or minimum wage technical labour standards can be taken all the way through the dispute settlement process. No case has ever advanced beyond the first step, ministerial consultations, though public hearings have been convened to allow the parties to present evidence and establish a record after which a public report is issued with recommendations . The rationale for the NAALC was to attempt to avoid unfair...

Labor Provisions in US Free Trade Agreements: Determinants and Adequacy

The inclusion of labor-related provisions in US Free Trade Agreements has been a contentious issue. They have been attacked both for allegedly weakening the comparative advantage of developing and emerging countries; and for being too weak and inconsistent with the recommendations of the International Labour Organization (ILO). This paper proposes a method of assessing the reality of labor rights protection in U.S. FTAs Partner countries and gives a more precise picture of the adequacy of Labor-related provisions in those FTAs given the situation of labor rights protection in U.S FTAs Partner-countries. In doing so, it provides also a careful and original methodology to evaluate the respect of ILO Conventions and build an Index of Labour Bargaining Power, both of these constructions can be reproduced in further research and used to monitor the evolution of Labour Rights in any given country.