NOTES
RE-THINKING THE WTO’S RELATIONSHIP TO
INTERNATIONAL LABOR STANDARDS:
IS IT FINALLY TIME FOR A GLOBAL APPROACH?
BRITTANY COHAN BACLAWSKI*
ABSTRACT
This Note explores the World Trade Organization’s (WTO’s) relationship to
labor standards. It considers the possibility of WTO adoption of international
labor standards, analyzing the arguments in favor of and against this approach. It then analyzes the use of free trade agreements as an alternative
mechanism for both the setting and enforcement of labor standards, using
previous free trade agreements and the Trans-Pacific Partnership Agreement as
vehicles through which to explore the pros and cons of this approach. It concludes
with recommendations regarding how the WTO can amend its organizational
documents in order to adopt international labor standards.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. THE WTO SHOULD ADOPT LABOR STANDARDS . . . . . . . . . . . . .
A. Protection of Fair Labor Standards, an Internationally
Accepted Human Right, and Prevention of a Race to the
Bottom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Implementation of Effective Enforcement Mechanisms Is Necessary
to Achieve Compliance with Core Labor Standards . . . . . . . . .
C. International Labor Standards Are Linked to International
Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Incorporating Labor Standards through the
Existing Structure of Article XX . . . . . . . . . . . . . .
2. Adding New Labor Standards into the WTO
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. THE ARGUMENT AGAINST LABOR STANDARD ADOPTION . . . . . . .
A. Opponents’ Suggestion Labor Standards Will Have a Negative
Impact on the Quality of Human Rights in Developing Nations
is Both Shortsighted and Inaccurate . . . . . . . . . . . . . . . . . . .
B. Opponents’ Suggestion That Labor Standards Will Impose
Unfair Burdens on Developing Nations’ Economies
Perpetuates Human Rights Violations . . . . . . . . . . . . . . . .
C. The WTO Should Limit its Role to Pure Trade Regulation . . . .
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* Associate, Simpson Thacher & Bartlett; J.D., Georgetown University Law Center, May 2016,
Cum Laude; B.A. Boston College, May 2011. © 2016, Brittany Cohan Baclawski.
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IV. ARE FREE TRADE AGREEMENTS THE ANSWER? A LOOK AT THE
HISTORY OF FTAS AND THE TRANS-PACIFIC PARTNERSHIP . . . . . .
A. Trans-Pacific Partnership Promises Unparalleled
Commitment to Labor Standards . . . . . . . . . . . . . . . . . . . .
B. The TPP Follows a Long History of Failed Labor Promises in
Free Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Free Trade Agreements Produce Inconsistency . . . . . . . . . . .
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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I. INTRODUCTION
The World Trade Organization (WTO) was established in 1995 in an
effort to “reduc[e] obstacles to international trade and ensur[e] a level
playing field for all, thus contributing to economic growth and development.”1 The WTO, which presently consists of 162 Member States, is
“the only global international organization dealing with the rules of
trade between nations.”2 Presently, the WTO defers to the International Labor Organization (ILO) to set international labor standards.
Although the two bodies emphasize a system of cooperation and
collaboration between them, neither has succeeded in effectively enforcing and improving international labor standards.
Leading up to the establishment of the WTO, there were a number
of agreements made between 1947 and 1986 that laid the framework
for international trade relations. In 1947, the United Nations Conference on Trade and Employment adopted the Havana Charter for the
International Trade Organization.3 The Havana Charter, which ultimately never came into force, was the first international trade agreement to recognize the importance of a relationship between international trade and the regulation of labor standards. Article 7(1) of the
Charter recognized that “all countries have a common interest in the
achievement and maintenance of fair labor standards.”4 Articles 7(2)
and 7(3) emphasized the importance of country cooperation with the
1. OVERVIEW, WTO.ORG, https://www.wto.org/english/thewto_e/whatis_e/wto_dg_stat_e.
htm (last visited Oct. 20, 2015).
2. WHAT IS THE WTO?, WTO.ORG, https://www.wto.org/english/thewto_e/whatis_e/whatis_
e.htm (last visited Jan. 12, 2016).
3. PRE-WTO LEGAL TEXTS, WTO.ORG, https://www.wto.org/english/docs_e/legal_e/prewto_
legal_e.htm (last visited Nov. 8, 2015).
4. U.N. Conference on Trade and Employment, Havana Charter, U.N. Doc. E/CONF.2/78
(Mar. 24, 1948).
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THE WTO’S RELATIONSHIP TO INTERNATIONAL LABOR STANDARDS
ILO on matters relating to labor standards.5 Pending the entry into
force of the Havana Charter, the General Agreement on Tariffs and
Trade (GATT) was adopted by 128 countries, known as the “GATT
contracting parties,” to implement the tariff concessions negotiated in
1947.6 GATT, which focused primarily on the liberalization of trade in
goods, converted certain provisions of the Havana Charter, but did not
incorporate any of the references to labor and workers’ rights.7 The
GATT 1994, as modified by the Uruguay Round, ultimately became the
foundational framework agreement of the WTO, and the GATT contracting parties became officially known as “WTO members.”8 Although the GATT contains language that could be interpreted to
affirm the importance of labor protections, the WTO does not presently regulate or enforce international labor standards. With the
exception of a provision permitting (but not requiring) members to
prohibit trade in goods made with prison labor, the GATT did not
specifically address labor standards.
Rather, the ILO, established in 1919 as part of the Treaty of Versailles
by a Labour Commission composed of representatives from nine
countries, is the principal institution responsible for the adoption and
enforcement of international labor standards.9 The ILO established
and adopted four “core” labor standards: (a) freedom of association
and the effective recognition of the right to collective bargaining; (b)
the elimination of all forms of forced or compulsory labor; (c) the
effective abolition of child labor; and (d) the elimination of discrimination in respect of employment and occupation.10 The WTO proclaimed its deference to the ILO at the 1996 WTO Ministerial Conference in Singapore: “[w]e renew our commitment to the observance of
internationally recognized core labour standards. The [ILO] is the
competent body set to deal with these standards, and we affirm our
5. Id.
6. Pre-WTO Legal Texts, supra note 3; see also THE 128 COUNTRIES THAT HAD SIGNED GATT BY
1994, WTO.ORG, https://www.wto.org/english/thewto_e/gattmem_e.htm (last visited Jan. 12,
2016) [hereinafter GATT Signatories].
7. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S 194
[hereinafter GATT].
8. GATT Signatories, supra note 6.
9. Origins and History, ILO.ORG, http://www.ilo.org/global/about-the-ilo/history/lang— en/
index.htm (last visited Jan. 12, 2016).
10. See Renee Chartres & Bryan Mercurio, A Call for an Agreement on Trade-Related Aspects of
Labor: Why and How the WTO Should Play a Role in Upholding Core Labor Standards, 37 N.C. J. INT’L L.
& COM. REG. 665, 682 (2012); Mihir Chatterjee, Re-Negotiating Trade and Labor Standards in a Post
Hong Kong Scenario, 2 ASIAN J. OF WTO & INT’L HEALTH L. & POL’Y, 473, 477 (2007).
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support for its work promoting them.”11 Collaboration between the
WTO and ILO includes participation by the WTO in meetings of ILO
bodies, exchange of documentation, and informal cooperation between ILO and WTO Secretariats.12 Although WTO Member States
agreed that they were committed to recognizing core labor standards,
the concluding remarks of the chairman of the Singapore Conference,
Yeo Cheow Tong, cautioned that the declaration did not put labor on
the WTO’s agenda.13 The issue was again raised at the Seattle Ministerial Conference in 1999 when both the United States and the European
Union put forth proposals to address labor standards in the WTO, but
no agreement was reached.14 The WTO reconfirmed its position of
deference to, and cooperation with, the ILO in the 2001 Doha Ministerial Declaration.15
Unfortunately, this system of collaboration between the WTO and
ILO has proven to be ill-suited to effectively enforce and improve
international labor standards, primarily due to the ILO’s inability fulfill
its role as an enforcement arm. In particular, the ILO’s enforcement
mechanisms, which “favor fact-finding and reporting over sanctions,”16
have proven themselves to be woefully inadequate. Labor conditions
world-wide are dire, as evidenced by the fact that “only a minority of
working people today hold jobs that are well paid, where their fundamental rights are respected, and which ensure them some security in
the case of job loss, personal or family illnesses, or other difficulties.”17
Furthermore, child labor remains a persistent and pervasive problem
in many areas of the world. In fact, “the ILO estimates that 153 million
children aged five to fourteen are engaged in child labor, including an
11. TRADE AND LABOUR STANDARDS: SUBJECT OF INTENSE DEBATE, WTO.ORG, https://www.wto.
org/english/thewto_e/minist_e/min99_e/english/about_e/18lab_e.htm (last visited Oct. 14,
2015).
12. Id.
13. UNDERSTANDING THE WTO—LABOUR STANDARDS: HIGHLY CONTROVERSIAL, WTO.ORG,
https://www.wto.org/english/thewto_e/whatis_e/tif_e/bey5_e.htm (last visited Nov. 8, 2015).
14. Id.; see also TRADE AND LABOUR STANDARDS: A DIFFICULT ISSUE FOR MANY WTO GOVERNMENTS, WTO.ORG (2001), https://www.wto.org/english/thewto_e/minist_e/min01_e/brief_e/
brief16_e.htm.
15. World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc.
WT/MIN(01)/DEC/1, 41 ILM 746, 747 (2002) (“We affirm our declaration made at the
Singapore Ministerial Conference regarding internationally recognized core labor standards.”).
16. Chantal Thomas, Should the World Trade Organization Incorporate Labor and Environmental
Standards?, 61 WASH. & LEE L. REV. 347, 351 (2004).
17. Hanna Lerner et al., Global Justice, Labor Standards and Responsibility, 12 THEORETICAL INQ.
L., 439, 443 (2011).
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estimated fifty-three million in hazardous work.”18 It is clear that
something must be done to raise the standard of global working
conditions and prevent the continued exploitation of human capital
around the world. The question remains, what is the best approach to
the international regulation of core labor standards?
This Note will offer an answer to this exceedingly difficult question:
the best solution is the adoption of labor standards within the framework of the WTO, because this approach offers the most effective
method for regulating and enforcing international labor standards.
This Note will look closely at the arguments in favor of and against the
WTO’s adoption of labor standards. In Section II, I will first analyze
three key arguments in support of the incorporation of labor standards
into the framework of the WTO. In Section III, I will then analyze three
key arguments that labor standards are an inappropriate area for WTO
regulation. After discussing each side of this long-standing controversy,
in Section IV I will consider whether pursuing more aggressive labor
standards in free trade agreements is a more effective approach and
analyze the labor provisions and promises of the proposed TransPacific Partnership Agreement (TPP). Within this topic I will consider
whether past free trade agreements have been successful in their labor
provisions and promises and whether the TPP shows potential for
greater success. Finally, in Section V I will conclude with recommendations, suggesting that the WTO should, in fact, adopt and enforce
international labor standards.
II. THE WTO SHOULD ADOPT LABOR STANDARDS
The call for the WTO to adopt and enforce labor standards is not
new. In 1991, former President Bill Clinton urged the WTO to “make
sure that open trade does indeed lift living standards, [and] respects
core labor standards that are essential not only to worker rights, but to
human rights.”19 Although the issue of incorporating labor standards
into the framework of the WTO has been raised numerous times,
immense opposition from developing countries has prevented any
meaningful inquiries into the possibility.
I will advance three key arguments that the WTO should adopt and
has the power to adopt labor standards. First, the WTO has an obligation to adopt and enforce labor standards because they protect basic
18. Chartres & Mercurio, supra note 10, at 690.
19. Joshua M. Kagan, Making Free Trade Fair: How the WTO Could Incorporate Labor Rights and
Why It Should, 43 GEO. J. INT’L L. 195, 197 (2011).
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human rights. Second, the ILO, the international body with the
primary responsibility to regulate, enforce, and protect labor standards
has been unable to do so because it lacks effective enforcement
mechanisms. Finally, because labor is an essential aspect of trade, it is
well within the WTO’s domain to regulate labor through its regulation
of international trade. I will analyze two possibilities for incorporation
of labor standards: (1) the WTO may incorporate labor standards into
the existing structure of GATT Article XX, and (2) the WTO may draft
an entirely new clause dealing with labor standards.
A. Protection of Fair Labor Standards, an Internationally Accepted Human
Right, and Prevention of a Race to the Bottom
The legal basis for WTO regulation of labor standards rests upon
GATT Article XX. Article XX represents an effort to counterbalance
“broad nondiscrimination and market access principles” by instituting
“‘exceptions preserving individual states’ rights to regulate”20 trade
with other nations. Article XX(a), for instance, allows member states to
enact measures “necessary to protect public morals,” and is intended to
accommodate non-trade matters such as environmental protection and
the advancement of human rights. In interpreting Article XX, this
intention may be derived from the ordinary meaning of “public morals” at the time of GATT’s adoption, which contemplated the incorporation of humanitarian interests.21 Although it may also be argued that
“public morals” at the time did not contemplate core labor standards as
we understand them today, GATT was drafted in 1947 when coerced
labor was “the only widely prohibited international human rights
norm”; 22 therefore, it is reasonable to conclude that the drafters
intended to carve out an exception for widely accepted international
human rights. Furthermore, in addition to being interpreted in good
faith in accordance with the ordinary meaning, treaties are to be
interpreted in their context and in light of their object and purpose
under the Vienna Convention on the Law of Treaties.23 Context and
purpose are derived from any subsequent relevant agreements between
the parties, subsequent practice, and any relevant rules of international
20. Sol Picciotto, Humanizing Global Economic Governance, in LINKING GLOBAL TRADE AND
HUMAN RIGHTS 27, 30 (Daniel Drache & Lesley A. Jacobs eds., Cambridge ed. 2014).
21. See Yasmin Moorman, Integration of ILO Core Rights Labor Standards, 39 COLUM. J. TRANSNAT’L
L. 555 (2001); GATT, supra note 7.
22. Chartres & Mercurio, supra note 10, at 696.
23. Vienna Convention on the Law of Treaties art. 31, opened for signature May 23, 1969, 1155
U.N.T.S. 331.
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law. Accordingly, “public morals” ought to be a flexible and evolving
standard that reflects the present-day understandings of the term.
Surely the protection of the core labor standards prohibiting forced
labor and child labor, among other requirements, falls within the
present-day perception of public morals, as such forms of labor are
universally condemned.
Additionally, Article XX(b) provides exceptions for measures necessary to protect human, animal or plant life, or health.24 The meaning of
Article XX(b) has been interpreted broadly, as there has a “willingness
of WTO panels . . . to provide Members with a wide scope in crafting
measures for the protection of human, animal, and plant life and
health.”25 This willingness to stretch the meaning of Article XX(b) may
very well extend to labor standards. In many cases labor standards serve
to protect human life. For instance, the prohibition of forced labor is
intended to protect individuals from being physically restrained through
threats of and actual violence. Thus, the meaning of Article XX(b)
could be stretched to incorporate core labor standards as a means of
protecting human life.
However, reliance upon GATT Article XX to raise labor standards
has been challenged. Yasmin Moorman explains that “Article XX
dispute settlement history reveals that the only affirmative duty created
by the article is essentially to leave uncompromised the WTO regime
when a Contracting State enacts a measure in furtherance of certain
public policy priorities.”26 Fundamentally, this line of reasoning suggests that although Article XX leaves room for the WTO and Member
States to contemplate human rights issues, it does so only passively by
enabling Member States to pursue restrictive measures in order to
protect public policy interests within their own borders and cannot be
used to affirmatively require other Member States to adopt labor standards unless they are willing to do so.
Moreover, as an organization composed of human beings, the WTO
should be obligated to adopt and enforce core labor standards that
protect basic human rights and prevent a race to the bottom. Without
24. GATT, supra note 7, art. XX(b).
25. Chartres & Mercurio, supra note 10, at 700.
26. Moorman, supra note 21, at 574; see also Panel Report, European Communities—Measures
Prohibiting the Importation and Marketing of Seal Products, WTO Doc. WT/DS400/R, WT/DS401/R
(adopted Nov. 25, 2013) (recalling that the interpretation of Article XX involves a delicate
balancing of “the right of a Member to invoke an exception under Article XX and the right of
other Members under varying substantive provisions,” thereby reaffirming the concept that
Article XX gives Members the right to invoke exceptions, but it does not require them to).
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enforceable labor standards, some countries may attempt to gain a
comparative advantage by lowering their labor standards as compared
to countries with higher labor standards. The result, some argue, is the
creation of “a downward pressure on the labor standards of all exporting countries.”27 Conversely, it has been argued that compliance with
core labor standards will “lead to a higher quality of goods, more
productivity and an increase in the standard of living.”28 Furthermore,
the core labor standards are of great international concern because
they arguably have “attained status of jus cogens [sic] or universal
law.”29 The necessity of protecting and enhancing core labor standards
is widely, if not universally, accepted. Such universal acceptance is
demonstrated by the fact that over 170 ILO Member States recognize
the core labor standards. These standards are more than rights owed
specifically to workers, they are rights owed universally to human
beings. Renee Chartres and Bryan Mercurio make a compelling argument that “any comparative advantage gained by non-compliance with
these standards is not an advantage that should be shielded or trumped
by liberalized trade.”30 This is because “[c]hild labor is prohibited not
because the labor is cheaper than adult labor, but rather because the
growth and development of children should not be undermined
through labor . . . Similarly, forced labor is prohibited not because it
creates an economic distortion, but rather because it denies workers
their freedom.”31 There is no place in global trade for a comparative
advantage built upon the denial of basic human rights afforded by the
core labor standards. Although the WTO is bound by the rules of
customary international law, and thus should be bound by core labor
standards to the extent they are universally accepted, there is no
provision in the WTO framework by which the WTO can enforce core
labor standards. As such, the WTO should have a responsibility to
respect human rights by incorporating core labor standards into its
mandate so that it can effectively enforce them in the event of breaches
by Member States. Incorporating core labor standards into the framework of the WTO presents a powerful avenue through which we can
“[h]old the community of nations to this commitment through the
threat of a WTO supported trade-based response.”32
27.
28.
29.
30.
31.
32.
242
Kagan, supra note 19, at 197.
Chatterjee, supra note 10, at 483.
Id. at 478.
Chartres & Mercurio, supra note 10, at 692.
Id.
Moorman, supra note 21, at 556.
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B. Implementation of Effective Enforcement Mechanisms is Necessary to
Achieve Compliance with Core Labor Standards
Second, the ILO has proven ill-equipped as the primary organization
responsible for regulating international labor standards because it has
been unable to ensure adequate protection and enforcement of core
labor standards. The ILO lacks effective enforcement mechanisms
because it cannot authorize retaliatory trade measures or sanctions.
Instead, the ILO relies on its member states to enforce the legal
obligations it establishes. The Committee on Freedom of Association
(CFA), though intended to ensure member states’ compliance with
ILO standards, lacks strong enforcement mechanisms.33 Its inability to
enforce labor standards is demonstrated by its ineffective attempts to
act against Myanmar in the face of egregious and persistent labor
violations. In 2000, after the ILO Commission of Inquiry found extensive violations of the Forced Labor Convention, the ILO attempted to
hold Myanmar accountable for such violations by recommending
sanctions and urging member-states and international institutions to
review their trade relationships with Myanmar, to ensure they were
neither knowingly nor unknowingly supporting the alleged violations.34 To say that the ILO’s effort was unsuccessful is putting it lightly.
The recommendation of sanctions proved unsuccessful as violations
persisted for over a decade and such calls for trade relationship reviews
were, for the most part, ignored by the international community. In
fact, not a single ILO Member State initiated any further sanctions until
2003 when the United States banned all trade with Myanmar under the
Burmese Freedom and Democracy Act.35 Furthermore, many Member
States continued to engage in trade with Myanmar, despite a 2010 ILO
report that “very few of the recommendations from the Commission of
Inquiry had been effectively implemented.”36 It was not until June 2013
that Myanmar finally made enough progress for the ILO to lift the
restrictions first introduced more than thirteen years prior in 2000.37
33. Committee on Freedom of Association, ILO.ORG, http://www.ilo.org/global/standards/applyingand-promoting-international-labour-standards/committee-on-freedom-of-association/lang— en/
index.htm (last visited Sept. 12, 2016) (explaining the process by which complaints are made to
the CFA, which then makes recommendations on how the violations could be remedied).
34. Kagan, supra note 19, at 200.
35. Chartres & Mercurio, supra note 10, at 688.
36. Id. at 689.
37. ILO Lifts Remaining Restrictions on Myanmar, ILO.ORG (June 18, 2013), http://www.ilo.org/
ilc/ILCSessions/102/media-centre/news/WCMS_216355/lang— en/index.htm; see also ILO Lifts
Myanmar Restrictions, MMTIMES.COM (June 24, 2013), http://www.mmtimes.com/index.php/
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The Myanmar case highlights the weak enforcement capabilities of the
ILO and unwillingness, perhaps due to a lack of political will, of
Member States to enforce labor standards independently.
Bringing labor standards within the domain of the WTO would
provide member states with an opportunity to establish the standards
for a cohesive, multilateral response to the persistence of sub-par labor
standards worldwide, something that the ILO has been unable to do
thus far.
C. International Labor Standards Are Linked to International Trade
Finally, the WTO has the legal authority to regulate labor standards
because labor is inextricably linked to trade. Chatterjee expands upon
this concept, explaining that “a sizeable amount of labor goes into
producing goods, the very goods the trade of which the WTO aims to
liberalize.”38 The WTO’s aforementioned goal, to “level the playing
field for all,” cannot be accomplished in a global economy that allows
sub-par labor standards to persist. In an effort to do so, the WTO may
incorporate labor standards into the existing structure of GATT Article
XX, or the WTO may draft an entirely new clause dealing with labor
standards.
1. Incorporating Labor Standards through the Existing Structure of
Article XX
However, incorporating labor standards into Article XX in a way that
would allow Member States to meaningfully invoke Article XX(a) or
XX(b) to implement “necessary” measures against other Member
States whose labor standards, or lack thereof, threaten “public morals”
or “human life and health” could go a long way in raising international
labor standards. For a measure to be “necessary” under Article XX,
there cannot be any alternative measures available that are either
consistent with GATT or at least less inconsistent with it, which a
Member State could reasonably be expected to employ to achieve its
objectives.39 The measures also must not constitute a means of arbitrary
or unjustifiable discrimination or a disguised restriction on interna-
national-news/7220-ilo-lifts-myanmar-restrictions.html (“The remaining restrictions have been
lifted because Myanmar carried out pragmatic measures, including legislation, for eliminating
forced labour in the country and has achieved good results.”).
38. Chatterjee, supra note 10, at 493.
39. Panel Report, Thailand—Restrictions on Important of and Internal Taxes on Cigarettes, WTO
Doc. WT/ DS10/R (Nov. 7, 1990).
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tional trade.40 In Korea-Various Measures on Beef, the Appellate Body of
the Dispute Settlement Body of the WTO bifurcated the necessity test
so that a measure must be either (1) the only available option, or (2)
justifiably “necessary” even if there are alternative options available.41
With respect to the second prong, the Appellate Body stated that “a
measure with relatively slight impact upon imported products might
more easily be considered as ‘necessary’ than a measure with intense or
broader restrictive effects.”42 Furthermore, whether a measure that is
not “indispensable” may nonetheless be “necessary” under Article XX
requires “a process of weighing and balancing a series of factors.”43 The
Appellate Body in European Communities—Asbestos expanded on this,
noting that the more vital or important the policy objectives to be
achieved are, the more likely they will be accepted as “necessary”
measures.44 So, if restrictions serve a particularly important public
interest, they may be accepted as “necessary” even if alternative measures are, in fact, available.
Accordingly, State A could attempt to implement restrictions against
trading with State B under Article XX based on State B’s failure to
observe or enforce core labor standards. Such a measure would be
justifiable under Article XX only if it is “necessary” to protect public
morals or protect human, animal, or plant life or health. Protecting
public morals or protecting human life through the imposition of labor
standards in line with the universally accepted core standards that serve
to protect workers’ lives surely falls under Article XX(a) or (b).45 Such
a regulation could be considered “necessary” to the pursuit of preservation of public morals or human health by preventing goods produced
under unfair labor standards from coming into their country if there
are no alternative means available to achieve these policy goals. One
would argue that application of restrictive measures related to labor
standards is the only effective, and thus necessary, way to produce a
deterrent effect to Member States whose export industry would be
negatively impacted, forcing such States to raise their labor standards.
40. Panel Report, United States—Restrictions of Imports of Tuna, WTO Doc. WT/DS29/R (June
16, 1994).
41. Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, ¶
163, WTO Doc. WT/DS161/AB/R, WT/DS169/AB/R (Dec. 11, 2000).
42. Id. ¶ 164.
43. Id.
44. See Panel Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing
Products, ¶ 172, WT/DS135 (Sept. 18, 2000).
45. See id. ¶ 186 (“A policy that seeks to reduce exposure to a risk should fall within the range
of policies designed to protect human life or health, insofar as a risk exists.”).
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Alternatively, such measures could be deemed “necessary” even if
alternative means are available, because the improvement of labor
standards serves an extremely important public interest. Under this
approach, it must be proven that the measures taken would contribute
sufficiently to the policy objective of improving labor standards and
thereby protecting public morals or human life.46 Though it may be an
aspirational and imperfect solution in that its success in enforcing
labor standards rests upon the political will of Member States to take
advantage of the permissive exceptions under Article XX, it nonetheless presents an opportunity to those Member States that may be willing
and able to do so, particularly those in Europe and North America.
2. Adding New Labor Standards into the WTO Agreements
Furthermore, if fitting labor standards into the aforementioned
exceptions of Article XX is too much of a stretch upon existing
language, the WTO may also add a new clause specifically dealing with
the promotion and protection of labor standards. Professor Sol Picciotto points out that “it would also be technically possible to insert a
similar balancing ‘exception’ into the WTO Agreements to safeguard
human rights.”47 To do so, the WTO should adopt a social clause
ensuring members of the WTO implement minimum workers’ rights
and establish enforcement mechanisms incorporating trade sanctions.
However, adopting such a clause is not without its own challenges. It
will be difficult to strike a balance between drafting standards with
enough specificity to be effective and those that are broad and flexible
enough such that member states will be willing to agree upon them.
The WTO and Member States will face the same challenge individual
states have encountered in drafting free trade agreements:
[w]hen standards are expressed in fairly broad, aspiration
terms . . . countries are able to agree. But when translated into
more specific and operational language, the diversity among
countries in their levels of development, institutions, social
norms, political and cultural histories, rises to the surface; and,
46. See Panel Report, European Communities—Conditions for the Granting of Tariff Preferences to
Developing Countries, WTO Doc. WT/DS246/R (Dec. 1, 2003) (holding that the “EC Regulation
[did] not support the European Communities’ contention that it is ‘necessary’ to the protection
of human life and health in the European Communities, because such design of the measure does
not contribute sufficiently to the achievement of the health objective”).
47. Picciotto, supra note 20, at 30.
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except where the most extreme abuses of labor standards are
under consideration, agreement becomes elusive.48
Although this may be true, that there are significant challenges associated with the regulation of labor standards is an insufficient response in
light of the extensive and persistent labor violations occurring around
the world. The WTO and its Member States should, at the very least,
begin engaging in conversations and negotiations with the goal of
incorporating labor regulation into its framework. To continue to
delegate responsibility to the ILO, an institution that has proven
woefully incapable of enforcing labor standards, would be to acquiesce
to the ongoing violations of core labor standards around the world.
Surely broad, aspirational rules are preferable to no rules at all. At the
very least, the WTO ought to put labor on the table and work towards
more specific, operational work over time.
III. THE ARGUMENT AGAINST LABOR STANDARD ADOPTION
Developing countries strongly oppose the WTO’s adoption of labor
standards. Opponents of the WTO’s adoption of labor standards offer
three key arguments in response to the arguments discussed in Part II
of this Note. First, labor standards do not actually protect human rights
because, when forced prematurely upon developing nations, they often
lead to the perpetuation of poverty and hurt the individuals whom they
are meant to protect. Second, universal labor standards would impose
unfair burdens on developing countries and operate as a thinly veiled
smokescreen for protectionism. Finally, the WTO’s authority is limited
to the regulation of trade and as such, the role of the WTO is to govern
trade, not address other policy objectives. I will address these arguments and explain why they are not persuasive.
A. Opponents’ Suggestion Labor Standards Will Have a Negative Impact on
the Quality of Human Rights in Developing Nations is Both
Shortsighted and Inaccurate
Opponents of the WTO’s adoption of labor standards express concerns that, instead of promoting and protecting human rights, the
implementation of labor standards will actually hurt those impoverished individuals in developing nations who need protection the most.
48. Andrew G. Brown & Robert M. Stern, What are the Issues in Using Trade Agreements to Improve
International Labour Standards?, 7 WORLD TRADE REV. 331, 354 (2008).
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Opponents fear that subjecting all Member States to the same heightened labor standards may slow progress of developing nations by
eliminating certain jobs and keeping politically powerless workers in
poverty. If developing nations lose market access as a result of WTO
enforcement, the fear is that there will then be less trade and less
growth within these economies, leading to even fewer jobs and even
worse working conditions for laborers. For instance, University of
Michigan Professors Robert M. Stern and Katherine Terrell of the
Gerald R. Ford School of Public Policy believe that the premature
imposition of core labor standards on an economy will force workers
out of the government-regulated “formal” economy into an unregulated “informal” economy.49 Such a shift from “formal” to “informal,”
Stern and Terrell argue, will simply make poor workers poorer.50
Under this line of reasoning, the imposition of core labor standards will
produce the exact opposite result of its intended effect. Rather than
improve the quality of life in developing countries, it may very well
cause it to deteriorate further.
The difficulty is that in these nations participation in forced labor
and child labor is not necessarily a choice, but rather an economic
necessity for many individuals and families who could not sustain
themselves otherwise. Opponents of WTO adoption and enforcement
of core labor standards suggest that sanctioning developing countries
with lower labor standards would prolong poverty and delay improvements by keeping individuals out of the workforce, thereby threatening
their only means of survival. These arguments reflect the position taken
by many African and Asian NGOs that argue that imposing labor
standards “would have serious repercussions for the millions of families
in Africa and Asia who depend on the income of their children.”51 For
these families the imposition of labor standards, enforceable under the
WTO dispute resolution mechanisms, could seriously hinder their
ability to support their families. Critics of linking the WTO to the
enforcement of core labor standards believe that the WTO should
instead focus on promoting trade, which will in turn promote economic growth. Officials from developing countries argue that labor
conditions will improve only through economic growth and develop-
49. Robert M. Stern & Katherine Terrell, Labor Standards and the World Trade Organization 8
(Research Seminar in Int’l L., Discussion Paper No. 499, Aug. 2003), http://fordschool.umich.
edu/rsie/workingpapers/Papers476-500/r499.pdf.
50. Id.
51. Farkhanda Zia Mansoor, Trade Versus Peace: A Contextual Analysis of Core Labour Standards
in the Global Trading Community, 5 ASPER REV. OF INT’L BUS. & TRADE L. 133, 144 (2005).
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mental opportunity, “which would be hindered should rich countries
apply trade sanctions to their exports for reasons relating to labour
standards.”52 If this is true, developing nations should be given the
opportunity and the luxury of time to allow their economies to grow
and catch up to more developed countries before they may be subjected to more rigorous labor standards. To do so would, officials say,
“perpetuate poverty and delay developmental efforts including those
aimed at improved conditions in the workplace.”53
However, those opposed to bringing labor standards within the
framework of the WTO fail to recognize that economic growth and
economic human rights are very much intertwined. What is good for a
country’s workforce may also be good for a country’s economy. A
report published in 2005 by the Organization for Economic CoOperation and Development (OECD) concluded that “[c]ountries do
not gain sustained improvement in competitiveness by disregarding
core labor standards. Indeed, to the contrary, improved working
conditions are found to contribute importantly to growth and development.”54 Additionally, studies have indicated a connection between low
foreign direct investment and weak core labor standards.55 Therefore,
improved labor standards may very well have a positive impact on both
the economic growth and the quality of human rights in developing
nations.
In the end, this debate over whether WTO enforcement of core labor
standards will positively or negatively impact the quality of human
rights in developing countries boils down to a simple fact: maintaining
the status quo is unacceptable. Developing countries cannot be permitted to subject their people to persistent violations of core labor
standards, particularly when improved labor standards may actually
lead to growth and improve their economies in the long term. While
the imposition of labor standards presents challenges to developing
nations, the maintenance of low labor standards is not a viable alternative both from a human rights perspective and an economic perspective. Thus, it is shortsighted to confine the WTO purely to the promotion of trade when improving labor standards may actually improve
economic growth.
52. Trade and Labour Standards: A Difficult Issue for Many WTO Governments, supra note 14.
53. Trade and Labour Standards: Subject of Intense Debate, supra note 11.
54. The Org. for Econ. Cooperation [OECD], Trade and Structural Adjustment, at 23 (2005),
http://www.oecd.org/general/34753254.pdf.
55. Kagan, supra note 19, at 203.
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B. Opponents’ Suggestion That Labor Standards Will Impose Unfair Burdens
on Developing Nations’ Economies Perpetuates Human Rights Violations
The second argument advanced by opponents of the WTO’s adoption of labor standards is that such adoption is simply a form of
protectionism concealed under the guise of morality that imposes
unfair burdens on developing countries. Opponents, primarily those in
developing countries, of linking the WTO to the enforcement of core
labor standards believe that developed nations are simply seeking to
deny developing countries the opportunity to realize their competitive
and comparative economic and trade advantages. The underlying
concern is that “[i]f trade barriers are torn down too rapidly, [developing] countries will never have the opportunity to build up domestic
industries and to engage in respective learning process.”56 Essentially,
forcing labor standards upon developing countries will deny them the
opportunity to experience progress on their own terms, thereby depriving them of an opportunity to allow their economies to grow organically through a process of trial and error.
Furthermore, opponents suggest that a failure to enforce labor
standards in developing countries is often the result of “a larger set of
complex issues related to rule of law, lack of resources, the close
economic and social ties between governments and employees, cultures of non-compliance, and the technical capacity of labor inspectorates.”57 Because low labor standards may be caused by a number of
factors, many of which may be beyond the government’s control,
opponents believe it would be extraordinarily unfair to impose sanctions upon developing countries.58 Beyond what they believe is an
inherent unfairness in subjecting developing countries to the same
labor standards as developed countries, it may also be an ineffective
approach to improving labor standards in these nations. Imposing
enforcement mechanisms such as sanctions may not raise labor standards in a country whose political, infrastructural, social, and economic
situation prevents it from doing so, even in the face of sanctions. Kevin
Kolben, an Assistant Professor at Rutgers Business School, further
emphasizes that “a one-size-fits-all, sanctions-and-punish solution to
56. Peter Hilpold, WTO Law and Human Rights: Bringing Together Two Autopoietic Orders, 10
CHINESE J. INT’L L. 323, 334 (2011).
57. Kevin Kolben, The WTO Distraction, 21 STAN. L. & POL’Y REV. 461, 482 (2010).
58. Id. at 469 (describing a broad consensus among developing countries labor ministers that
including labor issues in the WTO framework would be “coercive” and “negate the benefits of
trade liberalization and aggravate problems of unemployment”).
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labor rights compliance, which unilateral import restrictions use, is not
necessarily the most effective means of the deep, developmental transformation” that is required in many developing countries.59 Developing nations are not years, but decades behind developed nations in
terms of their social, political, and economic structures. Thus, to hold
developing nations to the same high standards imposed on developed
countries would be both deeply unfair and arguably impossible.
However, even developing nations should take concrete steps toward
protecting workers through the enforcement of core labor standards,
via standards set forth by the WTO. Although the imposition of core
labor standards upon developing nations may occur progressively as
their economies develop, it must occur. As discussed above, the goal of
core labor standards is to protect certain universal human rights. One’s
right to freely associate and to be free from forced labor, child labor,
and discrimination in the workplace should not differ drastically just
because one person lives in a developed country and another person
lives in a developing country. Furthermore, the imposition of core
labor standards will not necessarily fundamentally disrupt the economies of developing countries. There is a great deal of international
investment and international aid going into developing countries.
Foreign investment and involvement may well serve to help developing
countries adjust their labor practices in a way that will allow for a
smooth, steady improvement of conditions. Likewise, demonstrated
improvement of labor standards helps developing countries attract
foreign investment. According to the ILO, “[s]tudies have shown that
in their criteria for choosing countries in which to invest, foreign
investors rank workforce quality and political and social stability above
low labour costs.”60 So, allowing developing nations to evade labor
standards simply because they are developing nations would not only
perpetuate human rights violations within these nations, but may also
deter foreign investment in their economies.
C. The WTO Should Limit its Role to Pure Trade Regulation
Finally, opponents argue that the role of the WTO is to govern trade,
not to address other policy objectives. Opponents believe that inclusion
59. Id. at 484.
60. The Benefits of International Labor Standards, ILO.ORG, http://www.ilo.org/global/standards/
introduction-to-international-labour-standards/the-benefits-of-international-labour-standards/
lang— en/index.htm (last visited Jan. 4, 2016).
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of labor standards would place excessive strains on WTO Members.61
They argue that, in order to continue to be successful and effective, the
WTO should maintain its limited role of trade regulation.62 However,
this argument ignores the reality that trade policymakers have introduced human rights concerns during both the Doha and Uruguay
Rounds of trade talks. In fact, the U.N. Secretary to the fifty-fifth session
of the General Assembly affirmed that “‘[t]he goals and principles of
the WTO agreements and those of human rights law do therefore share
much in common. Goals of economic growth, increasing living standards, full employment . . . are conducive to the promotion of human
rights, in particular the right to development . . . .’”63 Thus, human
rights concerns have long been incorporated into the agenda of the
WTO.
Furthermore, because core labor rights, as human rights, are potentially protected as jus cogens obligations as discussed above, all states
have an interest in protecting them. Emily Reid, author and trade
lawyer, argues that “just as human rights have developed special status
and rules under international law, their relationship to international
trade rules cannot be considered in isolation from broader consideration of international law.”64 Accordingly, although the WTO is first
and foremost an international institution that governs trade, it does not
exist in a vacuum. For instance, the WTO plays a role in numerous
other non-trade issues related to developing countries and agriculture,
such as food security, the environment, structural adjustment, and
poverty alleviation.65 Because the role of the WTO is no longer limited
exclusively to trade regulation, it may actually be the most appropriate
body for the regulation of labor standards in light of its proven
strengths.
61. See generally IOE Information Paper, WTO.ORG (March 2006), https://www.wto.org/english/
forums_e/ngo_e/posp63_ioe_e.pdf.
62. Pengcheng Gao, Rethinking the Relationship Between the WTO and International Human
Rights, 8 RICH. J. GLOBAL L. & BUS. 397, 406 (2009) (describing doubts as to the suitableness of the
WTO taking on labor, but recognizing that “[n]o matter if a country prefers it or not, non-trade
elements are gradually infiltrating the WTO regime”).
63. Mansoor, supra note 53, at 153 n.84, (citing Globalization and its Impact on the Full Enjoyment
of all Human Rights: Preliminary Report of the Secretary-General, UN GAOR, 55th Sess., UN Doc.
A/55/342 (2000)).
64. EMILY REID, BALANCING HUMAN RIGHTS, ENVIRONMENTAL PROTECTION AND INTERNATIONAL
TRADE 258 (2015).
65. PHASE 1: ‘NON-TRADE’ CONCERNS: AGRICULTURE CAN SERVE MANY PURPOSES, WTO.ORG,
https://www.wto.org/english/tratop_e/agric_e/negs_bkgrnd11_nontrade_e.htm (last visited Jan.
4, 2016).
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IV. ARE FREE TRADE AGREEMENTS THE ANSWER? A LOOK AT THE HISTORY
OF FTAS AND THE TRANS-PACIFIC PARTNERSHIP
In recent history, free trade agreements (FTAs) have been very
successful in breaking down barriers to trade and creating an environment conducive to easy, efficient, and economical trading. FTAs, which
are designed to reduce or eliminate barriers to trade between two or
more countries and help protect local markets, however, have enjoyed
less success in effectively achieving related social goals such as improving labor standards.66 Although the most recent FTA initiative by the
United States, the TPP, promises to promote workers’ rights and
establish the highest labor standards of any FTA, the actual text of the
agreement is strikingly similar to previous FTAs, which casts serious
doubt upon these claims because historically FTAs have not adhered
strictly to labor standards.67 This is in large part due to the fact that the
TPP follows a long history of failed labor promises in FTAs, as demonstrated by the Guatemala Central America Free Trade Agreement case
and other failures to improve and enforce labor standards in FTAs as
described below. Furthermore, because FTAs have the potential to
establish inconsistent obligations for WTO Member States, they may be
an inappropriate avenue through which heightened labor standards
can be achieved.
A. Trans-Pacific Partnership Promises Unparalleled Commitment
to Labor Standards
The TPP Agreement, the text of which was released on November 5,
2015, is a proposed Asia-Pacific FTA among the United States and
eleven other countries (Australia, Brunei Darussalam, Canada, Chile,
Japan, Malaysia, Mexico, New Zealand, Singapore and Vietnam).68 The
TPP promises to promote economic growth, reduce poverty, and
enhance labor and environmental protections, among other aspira-
66. Cole Stangler, Will the Trans-Pacific Partnership Improve Labor Standards?, IBTIMES.COM (Oct.
5, 2015, 4:19 PM), http://www.ibtimes.com/will-trans-pacific-partnership-improve-labor-standards2127388 (“Past deals with strong labor provisions appear to have done little to stop some of the
most egregious abuses of worker rights.”).
67. Id. (explaining that labor standards in U.S. free trade agreements with Central America
and the Dominican Republic, Colombia, Oman and Peru are “similar to those reportedly in the
TPP” and that “consistency with [free trade agreements] labor provisions in most partner
countries is generally not monitored and enforced systematically”).
68. See Overview of TPP, USTR.GOV, https://ustr.gov/tpp/overview-of-the-TPP (last visited
Jan. 12, 2016).
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tions geared toward the “ultimate goal of open trade and regional
integration across the region.”69 With respect to labor specifically, the
TPP seeks to establish “enforceable rules that protect the rights of
freedom of association and collective bargaining; discourage trade in
goods produced by forced labor . . . and establish mechanisms to monitor and address labor concerns.”70 In addition to requiring TPP Member States’ compliance with labor commitments, the provisions seek to
establish rules that discourage trade in goods produced by forced
labor, regardless of whether the source country is a TPP country. The
International Business Times has summarized the TPP’s labor chapter:
The agreements laid out in the deal’s labor chapter require
Vietnam, Malaysia and Brunei to meet certain criteria before
they can access economic benefits from the TPP. For example,
Malaysia has agreed to implement regulations combatting human trafficking and Vietnam must allow independent labor
unions. Other provisions include requiring minimum wages
and hours of work, maintaining or instituting labor protections
and discouraging trade in goods made by forced labor.71
According to the Office of the United States Trade Representative
(USTR), the TPP will require all TPP countries to adopt and maintain
labor laws in accordance with the rights recognized by the ILO and
[will seek] to build on the strong labor provisions in the most
recent U.S. trade agreements by seeking enforceable rules that
protect the rights of freedom of association and collective
bargaining; discourage trade in goods produced by forced
labor, including forced child labor; and establish mechanisms
to monitor and address labor concerns.72
69. Summary of the Trans-Pacific Partnership Agreement, USTR.GOV, https://ustr.gov/about-us/
policy-offices/press-office/press-releases/2015/october/summary-trans-pacific-partnership (last visited Nov. 8, 2015).
70. TPP Issue-by-Issue Information Center: Labor, USTR.GOV, https://ustr.gov/trade-agreements/
free-trade-agreements/trans-pacific-partnership/tpp-chapter-chapter-negotiating-4 (last visited
Nov. 8, 2015).
71. Abigail Abrams, After Trans-Pacific Partnership Text Released, Labor Advocates Say Human
Rights Protections ‘Not Enforceable’, IBTIMES.COM (Nov. 5, 2015, 1:51 PM), http://www.ibtimes.com/
after-trans-pacific-partnership-text-released-labor-advocates-say-human-rights-2171278.
72. Labor: Protecting Basic Labor Rights in the Asia-Pacific Region and Leveling the Playing Field of
American Workers, USTR.GOV, https://ustr.gov/trade-agreements/free-trade-agreements/transpacific-partnership/tpp-chapter-chapter-negotiating-4 (last visited Oct. 20, 2015).
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President Obama has stated that the TPP will be “the most progressive
trade agreement in history” with regard to labor, environment, and
human rights. On October 6, 2015, the White House tweeted that
“[t]he #TPP establishes the highest labor standards of any trade
agreement in history.”73
However, labor advocates have expressed deep skepticism as to
whether the labor provisions of the TPP will actually be enforced. John
Sifton, the Asia Advocacy Director for Human Rights Watch, questioned the enforceability of Vietnam’s commitments when he asked the
New York Times, “‘[a]re trade unionists who actually produce all the
capital that we’re talking about here allowed to bring complaints
against a country for violations?’ . . . ‘No, of course not.’”74 Here, Sifton
alludes to the fact that complaints may only be brought through a
“contact point,” a designated office or official within a Party’s labor
ministry who is responsible for addressing labor-related matters.75
Labor advocates doubt that the United States will effectively enforce
the provisions to which it is committing itself and lament the fact that
the TPP does not allow affected parties, like trade unionists, to seek
enforcement. It also remains to be seen whether the TPP truly establishes significantly higher labor standards than previous trade agreements. The Central American Free Trade Agreement (CAFTA), for
instance, contains a strikingly similar definition of “labor laws” and
many similarly stated provisions;76 therefore, it does not appear that,
on its face, the TPP is particularly innovative with respect to labor
standards.
B. The TPP Follows a Long History of Failed Labor Promises in
Free Trade Agreements
With respect to President Obama’s statements, proponents of almost
every free trade agreement in the last 20 years have made “virtually
73. Barack Obama (@BarackObama), TWITTER (Oct. 6, 2015, 10:25 AM), https://twitter.com/
barackobama/status/651448303826001920.
74. Jackie Calmes, Trans-Pacific Partnership Text Released, Waving Green Flag for Debate, N.Y.
TIMES (Nov. 5, 2015), http://www.nytimes.com/2015/11/06/business/international/trans-pacifictrade-deal-tpp-vietnam-labor-rights.html?_r⫽0.
75. TPP Full Text, USTR.GOV, https://ustr.gov/trade-agreements/free-trade-agreements/
trans-pacific-partnership/tpp-full-text (last visited Jan. 5, 2015) [hereinafter TPP].
76. See CAFTA-DR Final Text, USTR.GOV, https://ustr.gov/archive/Trade_Agreements/
Regional/CAFTA/CAFTA-DR_Final_Texts/Section_Index.html (last visited Jan. 5, 2016) [hereinafter CAFTA].
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identical claims.”77 Cole Stangler, reporter for the International Business
Times, suggests that such claims are simply for show. Stangler argues
that “since the early 1990s U.S. officials have made [strong] claims
about free trade deals . . .. Once the deals have actually taken effect,
Democratic and Republican administrations have rarely enforced the
treaties’ labor standards.”78 Federal researchers have found “consistency with [free trade agreement] labor provisions in most partner
countries is generally not monitored and enforced systematically.”79
Although it is far too early to judge the success, or lack thereof, of the
TPP labor provisions (post-ratification), at this point in time there is
little reason to believe the effect will be any different than past FTAs.
One explanation for this is that while the TPP makes ample use of the
word “shall,” it fails to incorporate meaningful enforcement mechanisms into the Labor Chapter. Although TPP mandates that each party
“shall . . . discourage . . . the importation of goods from other sources
produced . . . by forced or compulsory labour”80 and “shall adopt and
maintain statutes and regulations . . . governing acceptable conditions
of work with respect to minimum wages,”81 there are no sanctions for
parties who fail to meet these mandates. Although parties may request
the establishment of a panel under Article 28.7 of TPP, “[n]o party
shall have recourse to dispute settlement . . . for a matter arising under
this Chapter without first seeking to resolve the matter in accordance
with this Article.”82 Thus, parties must go through what appears to be a
lengthy “labour consultation” process before even considering the
possibility of access to dispute settlement. Such a process involves
potential for various roadblocks and delays, and it does not appear to
provide a particularly effective and efficient enforcement system. These
labor provisions could be strengthened by building more meaningful
enforcement mechanisms directly into the TPP such as a more direct
path to dispute resolution or the imposition of a sliding scale of trade
sanctions depending on the severity of the violations.
Studies reveal that past FTAs with strong labor provisions have also
been largely ineffective in raising labor standards and curbing abuses
77. Staff of S. Elizabeth Warren, Broken Promises: Decades of Failure to Enforce Labor Standards in
Free Trade Agreements (May 18, 2015), http://www.warren.senate.gov/files/documents/Broken
Promises.pdf [hereinafter Broken Promises].
78. Stangler, supra note 66.
79. Id.
80. TPP, supra note 75, art. 19.6.
81. Id. art. 19.3.2.
82. Id. art. 19.15.13.
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of worker rights. In a 2014 Government Accountability Office (GAO)
assessment, it was found that the Office of the United States Trade
Representative and the Department of Labor “do not systematically
monitor and enforce compliance with FTA labor provisions.”83 The
study points to several examples that demonstrate the United States’
failure to enforce the labor provisions set forth in its FTAs. In fact, the
United States has FTAs in place with ten countries that continue to
produce goods with child labor or forced labor in violation of international law.84 For instance, despite labor standards required by the
Dominican Republic-Central America FTA with the United States,
Guatemala has been ranked one of the most dangerous countries for
trade unionists.85 Similarly, despite the Labor Action Plan in Colombia,
violence against workers persists. Fines assessed by the government in
response to labor violations “serve more as public relations successes
for the Ministry of Labor than acts of enforcement capable of exerting
pressure to change the fraudulent behavior of employers.”86
For example, the treatment of a complaint brought by the United
States in 2008 under CAFTA against Guatemala paints a particularly
troubling picture of the capability of FTAs’ enforcement mechanisms.87 Seven years have passed since the American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO) first submitted a complaint to the Department of Labor accusing Guatemala of
failing to protect workers’ rights in contravention of its obligations
under CAFTA.88 After several delays, an arbitration panel was sched-
83. U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-160, U.S. PARTNERS ARE ADDRESSING LABOR
COMMITMENTS, BUT MORE MONITORING AND ENFORCEMENT ARE NEEDED (Nov. 2014), http://www.gao.
gov/assets/670/666787.pdf.
84. Id.
85. Broken Promises, supra note 77, at 10.
86. Id. at 10.
87. It should be noted that CAFTA and the TPP contain virtually identical enforcement
provisions. See CAFTA, supra note 76, art. 16.2 (“A Party shall not fail to effectively enforce its labor
laws, through a sustained or recurring course of action or inaction, in a manner affecting trade
between the Parties, after the date of entry into force of this Agreement.”); TPP, supra note 75, art.
19.5.1 (“No party shall fail to effectively enforce its labour laws through a sustained or recurring
course of action or inaction in a manner affecting trade or investment between Parties after the
date of entry into force of this Agreement.”). The “Labor Consultation” processes under CAFTA
and TPP are also very similar with respect to the timeline and steps that must be taken before
parties may have recourse to dispute settlement. See CAFTA, supra note 76, art. 16.6; TPP, supra
note 75, art. 19.15.
88. Dan DiMaggio, As TPP Deal Inked, Guatemala Labor Case Unmasks Free Trade’s Empty
Promises, LABOR NOTES (Oct. 6, 2015), http://www.labornotes.org/2015/09/guatemala-labor-caseunmasks-free-trades-empty-promises.
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uled to issue its ruling in December 2015. However, as of January 2016,
no ruling has been issued. According to Stephen Wishart, Central
America Director for the AFL-CIO Solidarity Center, “[t]he slow pace
of the CAFTA case is ‘a huge detriment to workers in Guatemala,’ . . . [and] ‘[t]heir rights are being violated in the same ways that
were presented back in 2008.’”89 The delayed and drawn-out nature of
this case, and that fact that labor rights in Guatemala have not improved in the interim, demonstrates a lack of effective enforcement
capabilities that, sadly, is characteristic of FTAs.
Unfortunately, the enforcement mechanisms in the TPP labor chapter do not appear to be any stronger on their face. Although the TPP
requires parties to adopt and maintain statutes and regulations to
ensure freedom of association, the elimination of forced labor, the
abolition of child labor, and the elimination of employment discrimination,90 there is nothing in the text that requires parties to effectively
enforce these statutes and regulations through the threat of sanctions.
Although the text states that “no party shall fail to effectively enforce its
labour laws,”91 it lacks any real enforcement mechanisms to sanction a
party that fails to do so.
This lack of effective and efficient enforcement appears to be
systematic, as demonstrated by the fact that the Department of Labor
has accepted five claims against countries alleging violations of labor
commitments in FTAs, only one of which has been resolved, and all of
which have involved missed deadlines.92 This history of a systematic
lack of enforcement of FTA labor provisions and promises provides
little support that the TPP will be an effective means for raising labor
standards.
An important potential difference of the TPP is that it contains
proposed side agreements on labor with Brunei, Malaysia, and
Vietnam—three countries with poor records of protecting labor rights.
The Obama administration has expressed particular excitement with
respect to the Vietnam agreement, stating that “[w]ithout reservation, I
think this is the best opportunity we’ve had in years to encourage deep
institutional reform in Vietnam.”93 The agreement provides that Vietnam will amend its laws to ensure union rights for workers and more
effectively investigate forced labor, child labor and employment discrimi-
89.
90.
91.
92.
93.
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Id.
TPP, supra note 75, art. 19.3.1.
Id. art. 19.5.1.
Stangler, supra note 66.
Calmes, supra note 74.
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nation.94 Because the agreement also provides that the plan shall be
subject to dispute settlement, it probably has greater potential for
effective enforcement than the labor chapter generally. However, the
United States’ history of failing to enforce similar agreements makes it
less likely that these side agreements will bring about the dramatic
changes promised.
C. Free Trade Agreements Produce Inconsistency
A potentially serious problem with using free trade agreements to
pursue important global initiatives is that the existence of many different agreements may result in inconsistent obligations for WTO Member States. A recent editorial on the failure of the Doha Round pointed
out that regional trade agreements “threaten to segregate the world
into overlapping trading blocs with different rules in areas like labor
rights, environmental protection and access to medicines.”95 Furthermore, they often exclude “the world’s least-developed countries, like
Bangladesh and Ethiopia.”96 Consequently, FTAs may not be the most
effective way to bring about significant improvement in global labor
standards. Although it may be easier to get a few countries at a time to
agree to certain obligations, it would arguably be more effective to
establish a universal set of rules and regulations with respect to labor.
Universal standards would create a level of transparency and consistency that the global trade system currently lacks and desperately
needs.
V. CONCLUSION
The WTO should adopt and enforce core labor standards. The
incorporation and enforcement of core labor standards would play an
essential role in guaranteeing a basic human right that neither Member States nor other international institutions have been able to
guarantee successfully thus far.
First, the WTO has an obligation to institute and enforce labor
standards universally in order to effectively protect against human
rights violations related to labor abuses. WTO adoption of the universally accepted core labor standards will provide a level of uniformity
94. United Sates-Vietnam Plan for Enhancement of Trade and Labor Relations, USTR.GOV, https://
ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text (last visited Jan. 7, 2015).
95. Editorial, Global Trade After the Failure of the Doha Round, N.Y. TIMES, Jan. 1, 2016, at A22.
96. Id.
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that will not only prevent a race to the bottom among Member States
attempting to gain a comparative advantage by lowering their labor
standards, but lead to an overall improvement of labor standards
around the world. Although it is not an easy path to take, it is
undoubtedly the morally right one.
Second, and most importantly, the WTO is better positioned than
the ILO to enforce labor standards. Through the use of the dispute
resolution system, which has often been described as its “crown jewel,”
the WTO will be able to regulate labor standards more cohesively,
efficiently, and effectively than the ILO. As demonstrated by the
Myanmar case, the ILO is ill-equipped to enforce labor standards, even
in the face of persistent violations. This is because the ILO lacks
effective enforcement mechanisms. The WTO, on the other hand, is
already structured to effectively enforce violations of its regulations.
The WTO regime “alters the cost-benefit analysis that bears on the
self-interested choices that sovereign nations will typically make,” in
contrast with the ILO, which “relies primarily on diplomacy and
persuasion.”97 Enforcement of labor standards has historically been
perceived as an internal issue, with states independently bearing the
burden of enforcement. The ILO “regards its member states as the
main agents bearing remedial responsibility for the work conditions of
each state’s citizens.”98 Such an individualized system, however, has
failed to adequately promote and protect labor standards. In contrast,
WTO adoption and enforcement of labor standards would shift responsibility to a less self-interested body. Through the incorporation of core
labor standards, the WTO will be able to succeed where the ILO has
failed in holding Member States accountable for labor violations and
creating a deterrent against future violations. Finally, the WTO legally
can and should adopt labor standards, because labor is inextricably
linked to trade. Because of this, it is impossible for the WTO to achieve
a fair and free global trading regime while countries are subject to and
abide by varying standards.
Furthermore, the WTO is also better positioned to enforce labor
standards than individual countries that are party to free trade agreements. As discussed above, recent history has shown that FTAs provide
incomplete and ineffective enforcement of the labor standards advanced in their provisions. The WTO, in contrast, has been extremely
97. Moorman, supra note 21, at 580.
98. Jossi Dahan, Hanna Lerner & Faina Milman-Sivan, et al., Global Justice, Labor Standards and
Responsibility, 12 THEORETICAL INQ. L. 439, 461 (2011).
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successful in enforcing its regulations through its dispute settlement
mechanism. Much of this success may be attributed to the fact that it is
a system “based on clearly-defined rules, with timetables for completing
a case.”99 As in the Guatemala CAFTA case, which was marred by
persistent delays, enforcement of labor standards under FTAs suffers
from a complete lack of established processes and timetables. The
WTO dispute settlement mechanism, though created to deal with trade
disputes, could be expanded and employed to deal with alleged
violations of core labor standards. Incorporating core labor standards
into the structure of the WTO’s dispute settlement mechanism and
imposing the threat of trade sanctions upon violators will put new
pressures on Member States to improve their internal mechanisms for
enforcement and abide by core labor standards.
VI. RECOMMENDATIONS
As the institution best positioned to enforce labor standards, the
WTO should amend Article XX(e) of the GATT and adopt language
along the following lines:
relating to the products of forced or compulsory labor, child
labor, products produced under conditions preventing freedom of association and collective bargaining, and products
produced under parties who employ discriminatory practices,
and products produced under unacceptable conditions of work
with respect to minimum wages, hours of work, and occupational safety and health.
Such language would bring the core labor standards within reach of
the WTO’s dispute resolution mechanism. This language provides
clear guidelines regarding the types of labor practices that are forbidden and subjects violators to the force of an effective dispute resolutions system. The specificity of the prohibited practices prevents the
possibility of subsequent FTAs establishing inconsistent obligations.
Member States nevertheless retain some flexibility by virtue of the
Article XX chapeau, which prevents states from using the exceptions to
arbitrarily or unjustifiably discriminate against one another.
The success of such an initiative relies upon the willingness of both
developed and developing nations to make fundamental concessions.
99. UNDERSTANDING THE WTO: SETTLING DISPUTES, WTO.ORG, https://www.wto.org/english/
thewto_e/whatis_e/tif_e/disp1_e.htm (last visited Oct. 21, 2015).
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Strategically, if some WTO members continue to object to the inclusion of core labor standards in the WTO, there are several possible ways
to build support.
First, I recommend transitional periods that may serve to alleviate
developing countries’ concerns that they will be denied the opportunity to realize their competitive and comparative economic and trade
advantages. Providing some additional time to allow developing countries to “catch up” in terms of economic and structural development
would permit developing countries to enjoy a period of comparative
advantage. Imposing an end date on the transitional period would,
however, prevent such countries from exploiting their workers for the
sake of competitive advantage for an indefinite period of time.
Second, I recommend the establishment of an incentive-based rewards system, which would provide the necessary push for countries
that fear overly strenuous labor protections will hinder their capacity
for economic growth. For instance, a country like the United States
might offer developing countries certain trade advantages for demonstrated progress in labor conditions and protections. For this to work,
other developed nations must be willing to accept differential treatment. Thus, significant cooperation and compromise is required from
both developed and developing nations, something that has proven
very difficult throughout the history of the WTO. Fundamental change
in the way the WTO approaches labor standards is possible, but
Member States must be deeply committed to achieving it.
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