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Labour Standards Provisions in EU Free Trade Agreements: Reflections on the European Commission's Reform Agenda

  • JAMES HARRISON (a1), MIRELA BARBU (a2), LIAM CAMPLING (a2), FRANZ CHRISTIAN EBERT (a3), DEBORAH MARTENS (a4), AXEL MARX (a5), JAN ORBIE (a4), BEN RICHARDSON (a6) and ADRIAN SMITH (a7)...
Abstract

Labour standards provisions within the Trade and Sustainable Development (TSD) chapters of EU Free Trade Agreements (FTAs) are presented as a key element of the EU's commitment to a ‘value-based trade agenda’. But criticism of TSD chapters has led the European Commission to commit to improving their implementation and enforcement, creating a critical juncture in the evolution of the EU's trade–labour linkage. This contribution synthesizes findings from academic studies that have examined the effectiveness of labour standards provisions in EU FTAs. It then considers the reform agenda as presented by the European Commission, and explains how some of the proposals could tackle failures identified. However, it also argues that there are various limitations with the Commission's current proposals, and outlines how legal obligations and institutional mechanisms created by trade agreements could better be harnessed to improve working conditions and rights at work around the world.

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This article draws upon Mirela Barbu, Liam Campling, Franz Ebert, James Harrison, Deborah Martens, Axel Marx, Jan Orbie, Ben Richardson, and Adrian Smith, A Response to the Non-paper of the European Commission on Trade and Sustainable Development (TSD) chapters in EU Free Trade Agreements (FTAs) (26 September 2017) which can be found at http://www.geog.qmul.ac.uk/research/research-projects/beyondtheborder/publications/ (accessed on 26 June 2018). It arises in part from research undertaken by Barbu, Campling, Harrison, Richardson and Smith as part of a UK Economic and Social Research Council-funded project entitled “Working Beyond the Border: European Union Trade Agreements and International Labour Standards” (award number: ES/M009343/1). We would like to thank WTR editor Alan Winters and the journal's anonymous reviewers for their very helpful comments and suggestions on earlier drafts.

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1 European Commission, Trade for All (Brussels: Commission of the European Communities), 2015, http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf (accessed 9 October 2017).

2 European Commission, Strategic Plan 2016−2020: Trade, 19 July 2016. p. 14, https://ec.europa.eu/info/publications/strategic-plan-2016-2020-trade_en (accessed 9 October 2017).

3 European Commission, Non-paper of the Commission services Trade and Sustainable Development (TSD) Chapters in EU Free Trade Agreements (FTAs), 11 July 2017, p. 2, http://trade.ec.europa.eu/doclib/docs/2017/july/tradoc_155686.pdf (accessed 9 October 2017).

4 European Commission, supra n. 3; European Commission, Feedback and Way Forward on Improving the Implementation and Enforcement of Trade and Sustainable Development Chapters in EU Free Trade Agreements, 26 February, 2018, http://trade.ec.europa.eu/doclib/docs/2018/february/tradoc_156618.pdf (accessed 3 March 2018). A non-paper is a contribution submitted as a basis for discussion, seeking reaction of other parties to possible solutions, without necessarily committing to a public position on the addressed matter. Non-papers are not official documents of an (EU) institution, they are also not published within the context of a formal consultation. The European Commission will also publish later this year its first annual report on the implementation of Free Trade Agreements. This will give details on the implementation of the TSD chapter in each EU FTA.

5 M. Barbu, L. Campling, F. Ebert, J. Harrison, D. Martens, A. Marx, J. Orbie, B. Richardson, and A. Smith, A Response to the Non-paper of the European Commission on Trade and Sustainable Development (TSD) chapters in EU Free Trade Agreements (FTAs) (26 September 2017), www.geog.qmul.ac.uk/media/geography/docs/research/working-beyond-the-border/A-Response-to-the-Nonpaper-26.09.17.pdf (accessed 9 October 2017).

6 Bhagwati, J., ‘Trade Liberalisation and ‘Fair Trade’ Demands: Addressing the Environmental and Labour Standards Issues’, The World Economy, 18(6) (1995): 745759; Charnowitz, S., ‘The Influence of International Labour Standards on the World Trade Regime: A Historical Overview’, International Labour Review, 126 (1987): 565; Brown, D. K., ‘Labor Standards: Where Do They Belong on the International Agenda?’, The Journal of Economic Perspectives, 15(3) (2001): 89112; Lee, E.Globalization and Labour Standards: A Review of Issues’, International Labour Review, 136(2) (1997): 173189; Polaski, S., ‘Protecting Labor Rights through Trade Agreements: An Analytical Guide’, U.C. Davis Journal of International Law and Policy, 10(13) (2003): 1525.

7 European Commission, supra n. 1.

8 Examining the functioning and effectiveness of GSP+, see e.g. Richardson, B., Harrison, J., and Campling, L., Labour Rights in Export Processing Zones with a Focus on GSP+ Beneficiary Countries, Brussels: European Union Directorate-General for External Policies Policy Department (2017); Orbie, J. and Tortell, L., ‘The New GSP+ Beneficiaries: Ticking the Box or Truly Consistent with ILO Findings?’, European Foreign Affairs Review, 14(5) (2009): 663681.

9 Van Den Putte, L., Bossuyt, F., Orbie, J., and De Ville, F., ‘Social Norms in EU Bilateral Trade Agreements: A Comparative Overview’, in Takacs, T., Ott, A., and Dimopoulos, A. (eds.), Linking Trade and Non-Commercial Interests: The EU as a Global Role Model, CLEER Working Papers (2013), pp. 3548.

10 Van den Putte, L. and Orbie, J., ‘EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions’, International Journal of Comparative Labour Law and Industrial Relations, 31(3) (2015): 263283, at 264.

11 See European Commission, EU Textual Proposal for a Trade and Sustainable Development Chapter, 2015, http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153923.pdf (accessed 12 October 2017).

12 See European Commission, EU Proposal for Trade and Sustainable Development, Explanatory Note − September 2017, http://trade.ec.europa.eu/doclib/docs/2017/september/tradoc_156111.pdf (accessed 19 October 2017).

13 See European Commission, EU Textual Proposal: Trade and Sustainable Development, 2015, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1644 (accessed 24 October 2017).

14 This characterization of the provisions is drawn from J. Harrison, M. Barbu, L. Campling, B. Richardson, and A. Smith, ‘Governing Labour Standards through Free Trade Agreements: Limits of the European Union's Trade and Sustainable Development Chapters’, Journal of Common Market Studies (2018), https://doi.org/10.1111/jcms.12715 (accessed 26 June 2018). For a more detailed exposition and characterization of key provisions, see Bartels, L., ‘Human Rights and Sustainable Development Obligations in EU Free Trade Agreements’, Legal Issues of Economic Integration, 40(4) (2013): 297314.

15 The text of the Declaration is available at http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm (accessed 23 March 2018). On the importance of EU agreements referencing the ILO's Fundamental Conventions and the implications of these in terms of the commitments of the parties, see Agustí-Panareda, J., Ebert, F. Christian, and LeClercq, D., ‘ILO Labor Standards and Trade Agreements: A Case for Consistency’, Comparative Labor Law and Policy Journal, 36(3) (2015): 347380.

16 An exception is the EU-CARIFORUM EPA of 2008, which subjects its labour and environmental chapters to regular dispute settlement but excludes the application of trade sanctions for this purpose. This agreement includes some labour and environmental provisions in its investment chapter to which the full sanctions mechanism applies. See Bartels, pp. 301−311, supra n. 14.

17 The exact procedures and penalties for non-compliance can differ. For instance, in the US-DR-CAFTA FTA, there is a cap of $15m compensation that can be imposed for non-implementation of labour laws and environmental laws, whereas for non-implementation of other rules the penalty that can be imposed is unrestricted. See, e.g., Marx, A., Ebert, F., Hachez, N., and Wouters, J., Dispute Settlement in the Trade and Sustainable Development Chapters of EU Trade Agreements, Leuven Centre for Global Governance Studies (2017), https://ghum.kuleuven.be/ggs/publications/books/final-report-9-february-def.pdf, (accessed on 26 June 2018), pp. 34, 41.

18 To be considered, the allegations must raise issues relevant to the labour provisions (or specified labour provisions) in the FTA and illustrate a country's failure to comply with its obligations. If the submission meets these criteria, the US Office of Trade and Labor Affairs (OTLA) will accept the submission for review.

19 ILO, Social Dimensions of Free Trade Agreements (Geneva: ILO, 2013, revised edition in 2015), p. 5.

20 ILO, p. 1, supra n. 19. It should be noted that the European Commission contests this interpretation of its approach and presents its model as including a ‘binding’ dispute settlement mechanism. See e.g. European Commission supra, n. 3.

21 Although there is an important debate about the legal effects of referencing only the ILO Declaration, as opposed to directly referencing the ILO Conventions in the text of trade agreements. On this see, Agustí-Panareda, Ebert, and LeClercq, supra n. 15.

22 A similar argument is made by Kolben, K., ‘A Supply Chain Approach to Trade and Labor Provisions’, Politics and Governance, 5(4) (2017): 6068.

23 E.g. Postnikov, E. and Bastiaens, I., ‘Does Dialogue Work? The Effectiveness of labor Standards in EU Preferential Trade Agreements’, Journal of European Public Policy, 21(6) (2014): 923940.

24 C. Malmström, ‘Responsible Supply Chains: What's the EU Doing?’, European Commission, 7 December 2015, http://trade.ec.europa.eu/doclib/docs/2015/december/tradoc_154020.pdf (accessed on 23 March 2018).

25 E.g. see South Korea−EU FTA, Article 13.10, Moldova−EU Association Agreement Article 374, CARIFORUM EU EPA, Article 195.

26 Van den Putte, L., L. and Orbie, J., ‘EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions’, International Journal of Comparative Labour Law and Industrial Relations, 31(3) (2015): 263283, at 281.

27 See Marx, A., Lein, B., and Brando, N., ‘The Protection of Labour Rights in Trade Agreements: The Case of the EU−Colombia Agreement’, Journal of World Trade, 50(4) (2016): 587610; Ebert, F., ‘Labour Provisions in EU Trade Agreements’, International Labour Review, 155(3) (2016): 407433; Ebert, F., ‘The Comprehensive Economic and Trade Agreement (CETA): Are Existing Arrangements Sufficient to Prevent Adverse Effects on Labour Standards?’, International Journal of Comparative Labour Law and Industrial Relations 33(2) (2017): 295329; Orbie, J. and Van den Putte, L., Labour Rights in Peru and the EU Trade Agreement: Compliance with the Commitments under the Sustainable Development Chapter, OFSE Working Paper (2016), 58, www.econstor.eu/handle/10419/145974 (accessed 9 October 2017); Van den Putte, L.Involving Civil Society in Social Clauses and the Decent Work Agenda’, Global Labour Journal, 6(2) (2015): 221235; Harrison et al., supra n. 14; Smith, A., Barbu, M., Harrison, J., Richardson, B., and Campling, L., ‘Labour provisions in the European Union−Republic of Moldova Association Agreement’, Handbook on Assessment of Labour Provisions in Trade and Investment Agreements (Geneva: ILO, 2017), pp. 8797; A. Smith, M. Barbu, L. Campling, J. Harrison, and B. Richardson, ‘Labour Regimes, Global Production Networks, and European Union Trade Policy: International Labour Standards and Export Production in the Moldovan Clothing Industry’, Economic Geography (2018), https://doi.org/10.1080/00130095.2018.1434410; Vogt, J., ‘The Evolution of Labor Rights and Trade − A Transatlantic Comparison and Lessons for the Transatlantic Trade and Investment Partnership’, Journal of International Economic Law, 18(4) (2015): 827860; Orbie, J., Martens, D., Oehri, M., and Van den Putte, L.Promoting Sustainable Development or Legitimising Free Trade? Civil Society Mechanisms in EU Trade Agreements’, Third World Thematics, 1(4) (2016); Orbie, J., Martens, D., and Van den Putte, L., Civil Society Meetings in European Union Trade, Agreements: Features, Purposes, and Evaluation, CLEER Papers (2016/3), www.asser.nl/media/3044/cleer16-3_web.pdf (accessed 9 October 2017). Tran, A. N., Bair, J., and Werner, M., ‘Forcing Change from the Outside? The Role of Trade–Labour Linkages in Transforming Vietnam's Labour Regime’, Competition and Change, 21(5) (2017): 397416. Providing a framework for the analysis of impact, see J. Aissi, R. Peels, and D. Samaan, ‘Evaluating the Effectiveness of Labour Provisions in Trade Agreements: An Analytical Framework’, International Labour Review, 8 September 2017; Campling, L., Harrison, J., Richardson, B., and Smith, A., ‘Can Labour Provisions Work beyond the Border? Evaluating the Effects of EU Free Trade Agreements’, International Labour Review, 155(3) (2016): 357382.

28 Harrison et al., supra n. 14; Orbie and Van Den Putte, supra n. 27.

29 ILO, supra n. 19; Harrison et al., supra n.14, Orbie and Van Den Putte, supra n. 27; Vogt, supra n. 27.

30 Vogt, supra n. 27 ; ILO, supra n. 19.

31 Harrison et al., supra n. 14.

32 Orbie and Van den Putte, supra n. 27

33 Marx et al. supra n. 27; Harrison et al., supra n. 14.

34 Orbie and Van Den Putte, supra n. 27; Marx et al. supra n. 27; Harrison et al., supra n. 14; Van Den Putte supra n. 27; Orbie et al. supra n. 27; Orbie, Martens, and Van den Putte supra n. 27.

35 Harrison et al., supra n. 14; Orbie, Martens and Van den Putte, supra n. 27.

36 F. De Ville, J. Orbie, and L. Van den Putte, ‘TTIP and Labour Standards’, European Commission Directorate General for Internal Policies, IP/A/EMPL/2015-07, June 2016, www.europarl.europa.eu/RegData/etudes/STUD/2016/578992/IPOL_STU(2016)578992_EN.pdf (accessed 19 October 2017).

37 Ebert (2016), supra n. 27: Harrison et al., supra n. 14; Orbie and Van Den Putte, supra n. 27. A number of ad hoc projects have been carried out, as identified in European Commission, supra n. 4.

38 Ebert (2016), supra n. 27.

39 Orbie and Van Den Putte, supra n. 27

40 Marx et al., supra n. 27; Harrison et al., supra n. 14; Ebert (2016) supra n. 27; Tran et al., supra n. 27.

41 Harrison et al., supra n. 14.

42 Vogt, supra n. 27.

43 Harrison et al., supra n. 14; Marx et al., supra n. 27.

44 Ebert (2017), supra n. 27.

45 Harrison et al., supra n. 14.

46 F. Ebert, The United States’ Approach to Labour Provisions in Trade Agreements in the Pre-Trump Era: Lessons for the European Union's Trade Policy, Presentation at Labour Provisions, Trade Agreements and Global Value Chains Research Workshop, London, 15 June 2017.

47 Smith et al. (2018), supra n. 27; Harrison et al., supra n. 14; More broadly on this issue, see Locke, R. M., The Promise and Limits of Private Power: Promoting Labor Standards in a Global Economy (Cambridge University Press, 2013).

48 Orbie and Van den Putte, supra n. 27, Harrison et al., supra n. 14. This potentially violates a key procedural provision of the TSD chapter; that signatory states should not ‘weaken or reduce the …labour protections afforded in its laws to encourage trade or investment’, South Korea−EU FTA, Article 13.7. Although South Korean efforts were unsuccessful, at no point was the TSD chapter activated to contest these proposed reforms. In 2015, the Park Geun-hye administration pushed a number of repressive reforms to domestic labour law. The enactment of this suite of legal proposals was delayed by a large backlog of legislation, the Saenuri Party's failure to maintain a majority in the National Assembly in 2016, and Park's 2017 impeachment.

49 Postnikov, E. and Bastiaens, supra n. 23; Garcia, M. and Masselot, A., ‘EU−Asia Free Trade Agreements as Tools for Social Norm/Legislation Transfer’, Asia Europe Journal, 13(3) (2015): 241252; D. Raess, Labour Clauses in Trade Agreements: Worker Protection or Protectionism? (September 2017), www.etui.org/content/download/32542/301999/file/Presentation+ETUI+event+Raess.pdf (accessed 9 October 2017).

50 Studies based on large-N datasets of labour legislation can make wider generalisations about de jure labour rights but they cannot speak to the de facto implementation of such rights.

51 Ebert (2017), supra n. 27; see also Bartels, Lorand, ‘Human Rights, Labour Standards and Environmental Standards in CETA’, in Griller, S., Obwexer, W., and Vranes, E. (eds.), Mega-Regional Trade Agreements: CETA, TTIP, and TiSA: New Orientations for EU External Economic Relations (Oxford University Press, 2017).

52 European Commission, supra n. 4.

53 Quotations at European Commission, pp. 2–3, supra n. 4.

54 European Commission, p. 2, supra n. 4.

55 Harrison et al., supra n. 14; Orbie and Van Den Putte, supra n. 27; Vogt, supra n. 27. As identified above, there is no reason why these roadmaps should not also involve commitments by EU members states to also take action in their own territories on key labour issues.

56 A. Smith, L. Campling, M. Barbu, J. Harrison, and B. Richardson (2017), ‘Anchoring Labour Rights More Effectively in EU Trade Agreements’, Social Europe, 13 July 2017, www.socialeurope.eu/anchoring-labour-rights-effectively-eu-trade-agreements (accessed 9 October 2017); ILO, supra n. 19.

57 Comparing the two approaches and their results, see ILO, supra n. 19. Comparing US and EU approaches in Vietnam specifically, see Tran et al., supra n. 27 and Alice Evans, ‘Aiding Reform, In Context, Working Paper, available from authors.

58 See e.g. Cheong, D. and Ebert, F., ‘Labour Law and Trade Policy: What Implications for Economic and Human Development?’, in Marshall, S. and Fenwick, C. (eds.), Labour Regulation and Development: Socio-Legal Perspectives (Cheltenham: Edward Elgar, 2016), pp. 82126; ILO, supra n. 19.

59 For instance, evaluations of labour reforms actually carried out in Peru and Colombia, as a result of US efforts, found that progress was very limited, e.g. see Vogt, supra n. 27. On the limits of the US−Cambodia Textile Agreement, see International Human Rights and Conflict Resolution Clinic and Worker Rights Consortium, Monitoring in the Dark: An Evaluation of the International Labour Organization's Better Factories Cambodia Monitoring and Reporting Programme (2013), https://humanrightsclinic.law.stanford.edu/wp-content/uploads/2013/03/Monitoring-in-the-Dark-Stanford-WRC.pdf (accessed 9 October 2017).

60 European Commission, p. 5, supra n. 4.

61 European Commission, p. 12, supra n. 4.

62 For instance, in Moldova, non-governmental organisations with capacity to engage in civil society dialogue largely consist of think tanks, consultancy organizations, and public policy institutes. See Smith et al. (2017), at 92, supra n. 27.

63 This is debatable. There is a standard article in recent EU trade agreements which commits the parties to reviewing the sustainability impacts of the whole FTA. DAGs, as institutions created under the FTA, appear to have a role in relation to this process. For instance Article 13.10 of the EU−South Korea FTA states ‘The Parties commit to reviewing, monitoring and assessing the impact of the implementation of this Agreement on sustainable development, including the promotion of decent work, through their respective participative processes and institutions, as well as those set up under this Agreement, for instance through trade-related sustainability impact assessments.’

64 European Commission, p. 6, supra n. 4.

65 See our seventh critique above in section 3.

66 Harrison et al., supra n. 14.

67 European Commission, p. 7, supra n. 4.

68 See EU, OECD, and ILO, Responsible Supply Chains in Asia, Action Fact Sheet, http://trade.ec.europa.eu/doclib/docs/2018/march/tradoc_156624.pdf (accessed 26 June 2018).

69 European Commission, supra n. 4, p. 3.

70 For instance, arguing for a model which includes stronger sanctions, see ‘ETUC Submission on the Non-paper of the Commission Services on Trade and Sustainable Development (TSD) Chapters in EU Free Trade Agreements (FTAs)’, Brussels, 11 October 2017, https://www.etuc.org/en/document/etuc-submission-non-paper-commission-services-trade-and-sustainable-development-tsd (accessed 26 June 2018).

71 Marx et al., p. 203, supra n. 27; Orbie and Van Den Putte, p. 39, supra n. 27. See also Ebert (2017), pp. 310−311, supra n. 27.

72 These are Bahrain, Colombia, Dominican Republic, Guatemala, Honduras, Mexico, and Peru. See US Bureau of International Labor Affairs, Submissions under Labor Provisions of Free Trade Agreements(no date), www.dol.gov/agencies/ilab/our-work/trade/fta-submissions (accessed 9 October 2017).

73 For a discussion of the impact of the US approach in Peru and Colombia, see den Putte, Van, The European Union's Trade Labour Linkage: Beyond the ‘Soft’ Approach? (Ghent, Belgium: Faculty of Political and Social Sciences, Ghent University, 2016), pp. 102106.

74 Vogt, supra n. 27; ILO, supra n. 19; Cheong and Ebert, supra n. 58.

75 In the Matter of Guatemala – Issues Relating to the Obligations Under Article 16.2.1(a) of the CAFTA-DR Final Report of the Panel (14 June 2017), para. 594, https://www.trade.gov/industry/tas/Guatemala%20%20%E2%80%93%20Obligations%20Under%20Article%2016-2-1(a)%20of%20the%20CAFTA-DR%20%20June%2014%202017.pdf (accessed 26 June 2018).

76 AFL-CIO, Written Comments on How to Make NAFTA Work for Working People (12 June 2017), https://aflcio.org/statements/written-comments-how-make-nafta-work-working-people (accessed 26 June 2018). On the relevant criteria established by the panel and the surrounding evidentiary problems, see Brooks, Tequila, ‘US−Guatemala Arbitration Panel Clarifies Effective Enforcement under Labor Provisions of Free Trade Agreement’, International Labor Rights Case Law, 4(1) (2018): 4551.

77 International Trade Daily Bulletin, Bloomberg Law (30 June 2017), https://news.law.fordham.edu/wp-content/uploads/2017/07/Labor-Dispute-Article.pdf; AFL-CIO, supra n.76. See also Celeste Drake, US Trade Policy Fails Workers (26 June 2017), https://aflcio.org/2017/6/26/us-trade-policy-fails-workers (both accessed 9 October 2017).

78 See on this Marx et al., supra n. 19. See also J. Harrison, B. Richardson, L. Campling, A. Smith, and M. Barbu, Taking Labour Rights Seriously in Post-Brexit UK Trade Agreements Protect, Promote, Empower, CSGR Working Paper Series (2017), at p. 24, http://www.geog.qmul.ac.uk/media/geography/docs/research/working-beyond-the-border/284-17.pdf (accessed 9 October 2017).

79 For innovative ideas, for instance on who initiates complaints, see P.-T. Stoll, H. Gött, and P. Abel, Model Labour Chapter for EU Trade Agreements (2017), www.fes-asia.org/fileadmin/user_upload/documents/2017-06-Model_Labour_Chapter_DRAFT.pdf (accessed 9 October 2017).

80 It is still possible to consider complaints mechanisms, such as that proposed by Client Earth, which can be instituted without reform of TSD chapters. See Client Earth, A Formal Complaint Procedure for a More Assertive Approach towards TSD Commitments (27 October 2017), https://www.documents.clientearth.org/wp-content/uploads/library/2017-10-27-a-formal-complaint-procedure-for-a-more-assertive-approach-towards-tsd-commitments-version-1.1-ce-en.pdf (accessed on 23 March 2018).

81 European Commission, supra n. 4 p. 3.

82 See our seventh critique above in section 3.

83 European Commission, supra n. 4, p. 1.

84 This is a point also made by the European Trade Union Confederation in their response to the European Commission's non-paper. See ‘ETUC Submission’, supra n. 70.

85 See Ebert (2017), supra n. 27.

86 See UNCTAD, World Investment Report 2015, Chapter IV.

87 An example of the EU already using relaxed rules of origin for social purposes, albeit with limited effects so far, is the scheme for Jordanian exporters employing a minimum share of Syrian refugees. See Heliodoro Temprano Arroyo, ‘Encouraging the Employment of Refugees through Trade Preferences’, Policy Brief of the Immigration Policy Centre, Issue 2017/35 December 2017, http://cadmus.eui.eu/bitstream/handle/1814/49584/PB_2017_35_MPC.pdf?sequence=1&isAllowed=y (accessed 26 June 2018). Given that rules of origin (RoO) are designed to support industries in FTA partner countries by blocking third countries from benefitting from a tariff advantage through simple transhipment, there is the risk that liberalized RoO would result in reduced jobs through trade diversion. However, in practice, RoO can often be highly restrictive, limiting the availability of raw materials or intermediate products available to domestic export-oriented processors, thereby undermining potential employment; as has been well documented in relation to EU preferential RoO on clothing and fish products from the African, Caribbean, and Pacific group. See for example, Campling, L., 'Trade Politics and the Global Production of Canned Tuna', Marine Policy, 69 (July 2016): 220228.

88 Harrison et al., supra n. 78.

89 See e.g. Berik, G. and Rodgers, Y.. ‘Options for enforcing labour standards: Lessons from Bangladesh and Cambodia’, Journal of International Development, 22(1) (2010): 5685, which reports on the US’ ‘trade-based labour standards program in Cambodia that appears to have helped boost employment conditions without jeopardising export growth’ − see p. 57. The authors emphasize the need in such schemes to combine labour-related trade measures with strong independent monitoring and domestic policies that promote productivity and fairness, and argue that this ‘increases the chances that the trade-linked strategy would work to improve labour standards while minimising risks to employment and export growth’ − see p. 81.

90 The quote is taken from A. Smith, L. Campling, M. Barbu, J. Harrison, and B. Richardson, Do Labour Provisions in EU Trade Agreements Improve Workers’ Lives and Working Conditions around the World? (2017), p.6, www.geog.qmul.ac.uk/media/geography/docs/research/working-beyond-the-border/Summary-findings.pdf (accessed 9 October 2017). For more detailed analysis of the underlying issues see Smith et al. (2017), supra n. 27.

91 For a discussion, see Marx, A., Brando, N., and Lein, B. (2017), ‘Strengthening Labour Rights Provisions in Bilateral Trade Agreements. The Case of Voluntary Sustainability Standards’, Global Policy, 8(3) (2017): 7888.

92 One can find in almost any agreement signed after 2011 references to the importance of voluntary mechanisms to achieve the objectives of the agreement. For example, Article 271 in the EU−Colombia/Peru mentions that ‘The Parties recognise that flexible, voluntary, and incentive-based mechanisms can contribute to coherence between trade practices and the objectives of sustainable development. In this regard, and in accordance with its respective laws and policies, each Party will encourage the development and use of such mechanisms.’ Or Article 273c in the same agreement refers to the use of voluntary sustainability standards specifically in the forest sector. Another example is Article 9d in the EU−Vietnam agreement stipulates that ‘The Parties recognize that voluntary initiatives can contribute to the achievement and maintenance of high levels of environmental and labour protection and complement domestic regulatory measures. Therefore, each Party, in accordance with its laws or policies, shall encourage the development of and participation in such initiatives, including voluntary sustainable assurance schemes such as fair and ethical trade schemes and eco-labels.’

93 For an example of rather detailed provisions on occupational safety and health, see Article 23.3(3) of CETA, which expressly refers to the ILO Declaration on Social Justice for a Fair Globalization of 2008.

94 Creating a framework for dealing with this broader set of labour issues, see the CLS+ model proposed by the Friedrich Ebert Foundation in e.g. ‘What is CLS Plus?’ (2016), www.fes-asia.org/fileadmin/user_upload/documents/FES-CLS.pdf (accessed 26 June 2018). Many of the relevant standards are already contained within ILO Conventions.

This section is intended for occasional contributions from practitioners and academics with detailed knowledge of the actual formulation or implementation of trade policy. Our hope is that writing in this category will inspire others to submit notes and articles – typically in the range of 2,000 to 10,000 words – to the World Trade Review. As with all contributions to the World Trade Review, manuscripts in this category are fully reviewed by independent referees.

This article draws upon Mirela Barbu, Liam Campling, Franz Ebert, James Harrison, Deborah Martens, Axel Marx, Jan Orbie, Ben Richardson, and Adrian Smith, A Response to the Non-paper of the European Commission on Trade and Sustainable Development (TSD) chapters in EU Free Trade Agreements (FTAs) (26 September 2017) which can be found at http://www.geog.qmul.ac.uk/research/research-projects/beyondtheborder/publications/ (accessed on 26 June 2018). It arises in part from research undertaken by Barbu, Campling, Harrison, Richardson and Smith as part of a UK Economic and Social Research Council-funded project entitled “Working Beyond the Border: European Union Trade Agreements and International Labour Standards” (award number: ES/M009343/1). We would like to thank WTR editor Alan Winters and the journal's anonymous reviewers for their very helpful comments and suggestions on earlier drafts.

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World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
  • URL: /core/journals/world-trade-review
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