Labour Provisions In Trade Agreements Research Articles

Labour provisions in trade agreements and women's rights in the global south

AbstractThe effect of trade liberalisation on women has been hotly contested. Here, we take a step back and explore the effect of the institutions underlying trade on freedoms for women in the Global South. We build on the literature showing that the design of trade agreements matters for social welfare outcomes and argue that labour provisions in preferential trade agreements (PTAs) can contribute to improved women's rights. We assess this claim using statistical evidence and find a robust, positive correlation between labour provisions in PTAs and civic freedoms for women and no robust relationship with economic or political freedoms for women. Our study aims to establish an empirical link between PTA design and women's rights, suggesting new policies are needed to better balance economic globalisation with social goals in the current protectionist era.

How do labour provisions in trade agreements affect decent work?

This study investigates how labour provisions in both EU and US trade agreements impact on decent work in countries that ratified such agreements. It uses a new database of workers’ rights spanning a large cross-section of 125 partner countries. The results show that such labour provisions in EU trade agreements are only effective in reducing violations of workers’ rights in member countries, while those of the US were not effective in reducing the total violations of workers’ rights for member countries. Further evidence shows that both the EU and US labour-inclusive trade agreements significantly increase the violations of their rights in practice – indicating inadequate enforcement of labour provisions. Such evidence highlights that labour provisions in trade agreements may bolster the protection of legal labour rights without an improvement in their practical application. This calls for a strong commitment to the implementation of decent work policies by aligning domestic labour practices to international best practices.

Implementing and Enhancing Labour Standards Through FTAs? A Critical Analysis of the Panel Report in the EU-Korea Case

The EU has been a long-time advocate of including labour provisions in trade agreements. The labour provisions in the EU’s Free Trade Agreements (FTAs) have gone through intergenerational development and become a staple practice. Moreover, recent years witnessed the EU’s strengthened enforcement of labour commitments made in FTAs by trade partners. In 2018, the EU initiated a dispute settlement process against Korea based on the EU-Korea FTA, which is the first and, up to now, the only case on alleged violations of labour provisions in an EU FTA. In the published report, the Panel makes findings on three key jurisdictional and substantive issues: the requirement of a trade-labour linkage, the incorporation of International Labour Organization (ILO) labour standards into the FTA, and the obligation to ratify the fundamental ILO Conventions. Based on a critical analysis, the Panel’s decisions arguably not only left much to be desired at the technical level, but may exert an unpleasant effect on the development of the relationship between labour protection and FTAs. Nevertheless, the EUKorea case provides an important opportunity to revisit the appropriateness of using FTAs to implement and enhance labour standards, including enforcing labour provisions through a dispute settlement process. Dispute Settlement, Free Trade Agreements, Labour Standards, The EU-Korea Labour Dispute, Trade-Labour Linkage

Sanctions or No Sanctions: Enforcing Labour Provisions in Free Trade Agreements

The inclusion of labour provisions in trade agreements which commenced with the North American Free Trade Agreement (NAFTA) in the 1990s and other developed countries such as Canada and the EU saw the reaffirmation and implementation of commitments undertaken as part of the International Labour Organization (ILO) Conventions that these countries have ratified – with specific emphasis on respecting, promoting and realizing the core labour standards. While the general commitments and the nature of labour standards included in different agreements are largely similar, the approaches to enforce these standards under various agreements have differed widely. While the major developed economies (US, Canada and the EU) all include substantive labour provisions in their trade agreements as a standard practice now, their approaches to enforcement of these provisions are strikingly different (with US-Canada approach largely similar). These two contrasting approaches are – (1) that entails a possibility of monetary assessment, countermeasures or suspension of preferential benefits (sanctions based) and (2) that is based exclusively on recommendations and directions by a Panel of Experts as part of the dispute resolution process without any possibility of economic assessment (non-sanctions-based). This article provides an overview of these two main approaches towards enforcement of labour provisions in trade agreements. In light of the recent emphasis placed on including stronger enforcement mechanisms within the Free Trade Agreements (FTAs’) on sustainability, specifically in the EU this article examines the two approaches and highlights the approach which would be better suited for enforcing labour standards. Labour Standards, occupational safety and health, TSD, Dispute Settlement, Enforcement, NAFTA, NAALC, USMCA, Labour Provisions in FTAs’, Rapid Response Labour Mechanism, ILO Conventions, EU-Korea Labour Dispute, countermeasures, monetary assessment, suspension of benefits.

Labour Provisions in Trade Agreements

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.

Evaluating the effectiveness of labour provisions in trade agreements: An analytical and methodological framework

AbstractThis article puts forward an analytical and methodological framework for examining the effectiveness of labour provisions in trade agreements, illustrated by indicative case studies. Developing the notion of capacity at three levels (state, civil society and firms), the authors differentiate between proximate outcomes (legal, institutional and political) and distant, socio‐economic outcomes (improving labour rights and working conditions). They thus consider labour provisions in trade agreements as a multifaceted “policy mix” to be evaluated through qualitative and/or quantitative methods, depending on the aspect of capacity that is of interest, and on the available data. Some policy recommendations are also provided.

LABOUR PROVISIONS IN EU AND US MEGA-REGIONAL TRADE AGREEMENTS: RHETORIC AND REALITY

AbstractThe EU and the US have long called for the linking of trade and labour standards in trade agreements at both the multilateral and bilateral level. This article examines their practice of including labour provisions in trade agreements, with a particular focus on recent attempts to include such provisions on so-called ‘mega-regionals’, which were presented by their proponents as providing the benchmark for labour protection in future trade agreements. It discusses the rationale behind the inclusion of such provisions and their practical limitations, and examines the extent to which mega-regionals address these limitations. It is argued that whilst the EU and the US have been keen advocates for trade-labour linkages, there has also been an unwillingness to convert this rhetoric into practice, raising questions about the extent of their commitment to these values.

Evaluating the effectiveness of labour provisions in trade agreements - an analytical framework

This paper provides an analytical and methodological framework for examining the concept of effectiveness in the context of labour provisions in trade agreements. The main contribution of this article is to develop a sophisticated and multi-disciplinary concept of effectiveness of labour provisions in trade agreements. Labour provisions should be considered to be a multifaceted ‘policy mix’. While examining the process of how impact is brought about, a differentiation should be made between proximate (mostly legal, institutional and political) and distant (mostly socio-economic) outcomes. A mixed method approach that combines qualitative and quantitative approaches to evaluate effectiveness of labour provisions is suggested. We propose an analytical framework that is illustrated by a set of indicative case studies. The paper highlights that different elements of labour provisions can have effects on what we term ‘capacity’ in various shapes and levels, including the capacities of states, civil society actors and firms. In turn, such improvements in capacity can contribute to outcomes in the form of strengthened legal frameworks and domestic institutions, increased civil society advocacy and increased compliance at the level of firms. We argue that labour provisions are usually aimed at generating proximate outcomes before contributing to more distant outcomes, such as the improvement of labour rights and working conditions. For the design of labour provisions as a policy tool, this means that in specific trade agreements, the various elements of labour provisions should be used in a manner that effectively target those aspects of capacity that are seen as deficient and which are considered to most likely have an impact on labour rights and working conditions. Our framework implies that the effectiveness of labour provisions can be analysed with respect to different aspects of the process, e.g. with respect to different types of capacity, or with respect to the ultimate target – the improvement of working conditions and labour rights. In terms of methods, effectiveness of labour provisions can be measured and evaluated using quantitative or qualitative methods, depending on the particular aspect of capacity that is of interest as an outcome, and depending on the type of available data on capacity, working conditions and labour rights.

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.

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.

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...