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...

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