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  Trade Conditionality
 
Alben, Elissa, "GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link", Columbia Law Review v. 101 (2001) p. 1410-1447

Abstract:
This article traces the early history of the General Agreement on Tariffs and Trade (GATT) to argue that the while GATT is certainly amendable to linking labor standards with trade negotiations, the language of the Agreement and the historical understanding of what constituted "fair" trade is difficult to reconcile with the dominant contemporary approach to fair labor standards. The author focuses on debates in 1953 about whether to admit Japan to the GATT, and notes that at the time of Japan's petition for admission, an interpretation of fair trade that would have permitted trade sanctions for "unfair labor conditions" was rejected in favor of a wage-based understanding of fair trade. Based on this early history, the author writes that Article XX of the WTO, a provision often relied upon by modern advocates of linking trade and labor standards, "was not crafted to address labor standards concerns, or even human rights principles generally," but was more likely "designed to prevent countries from obtaining a comparative advantage through extreme forms of cost minimization." By contrast, most contemporary discussions of what constitutes "fair" trade relies the four fundamental labor rights adopted by the ILO in 1998 - freedom of association and collective bargaining, elimination of compulsory labor, abolition of child labor and protection against discrimination in employment. The author posits that the shift away from a wage-based approach toward the newer human rights approach might be a way to avoid the accusations from developing countries that it is protectionist to link trade to labor standards because their low wages are their main source of comparative advantage. While history "is not on the side of those who advocate entirely delinking trade and labor issues," the author concludes that the considerable difference between the original wage-based understanding of labor standards incorporated into the 1947 GATT and the more recent human rights understanding based on the ILO fundamental rights should compel scholars and labor activists to choose between returning to wage-based concepts of labor standards or resorting to "interpretive strategies" that seek to redefine provisions of the GATT in ways that will establish a link between human rights and trade issues.

Subjects: International Labour Organization (ILO), Japan, NAFTA/GATT, Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 3
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Arthurs, H.W., "Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law" [GALS Working Paper Series #1-06]

Abstract:
This article describes the work of the Comparative Labor Law Group from 1965 to 1978 as a particular “moment” in the life of post-war labor law. That “moment” had its origin in the post-war compromise, and was waning by the late 1970s. It was a time in which there was widespread agreement that the purpose of labor law was to provide justice in the workplace and that workers should enjoy economic and employment security. The author shows that a crisis in political economy, legal institutions and legal theory undermined the consensus and with it, the underpinnings of traditional labor law and comparative labor law scholarship. The national labor law systems that were the focus of the consensus moment withered under the combined onslaught of technological change, the rise of the service sector, neo-liberal ideology, the restructuring of key industries, the expansion of knowledge-intensive work, the entrance of women and excluded groups into the mainstream workplace, and changes in the nature of work itself. In the wake of the demise of the national labor law systems, new sources of normative authority derived from private rule-making institutions have increased their governance role in work relationships. Such systems include corporate codes of conduct, the UN Global Compact, the institutions of trade regimes, and other “soft law” initiatives. The author calls for a new type of comparative labor law that compares these diverse, semi-autonomous systems of non-state normativity in order to develop a “new syntax, grammar, and vocabulary of comparativism which will help make them mutually intelligible.”

[Working Paper]
Subjects: Comparative Labor Law, Corporate Codes of Conduct, Trade Conditionality
Newsletter: Vol 5, Issue 10
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Barry, Christian & Reddy, Sanjay G., "Global Justice and International Economic Arrangements: International Trade and Labor Standards: A Proposal for Linkage", Cornell International Law Journal v. 39 (Fall 2006) p. 545-637

Abstract:
The authors argue for making rights to trade conditional upon promotion of labor standards. They detail the five standard objections to such "linkage"-that it is: inconsequential, an inferior means of improving labor standards, creates an unfair distribution of burdens, is politically imperialistic, and is unfeasible. Their "constructive procedure" identifies various linkage proposals that avoid these objections. To demonstrate the feasibility of linkage, the authors conclude with a detailed example of how a linkage system based on WTO institutions and overseen by the ILO would work in practice. Two useful appendices use UNIDO industrial statistics to chart the likely effects of improvement in labor standards on labor costs.

Subjects: International Labour Organization (ILO), Labor Rights as Human Rights, Labor Rights in General (Misc.), Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 7
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Benvenisti, Eyal & Downs, George W., "The Empire's New Clothes: Political Economy and the Fragmentation of International Law", Stanford Law Review v. 60 (2007) p. 595-624

Abstract:
In this article, the authors argue that “fragmentation” in international law, which they define as the increased proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries, is a more serious problem than is commonly accepted among scholars of international relations. Specifically, the authors criticize the tendency to view the growth of competing international legal institutions as an almost natural or haphazard phenomenon, when, in their view, powerful states actively promote fragmentation because it enables them to preserve their dominance. In this view, fragmentation allows more powerful states to exploit the diversity of interests among weaker states by channeling reform efforts into a plethora of atomized institutions, by increasing the transaction costs for less powerful states to pursue claims in international tribunals, and by resisting the emergence of broad, multi-issue fora in which less powerful states might coalesce around a variety of issues, including environmental regulation, protection of domestic markets, and improved labor standards. They note, for example, that when the United States encountered increasing demands for reform within the General Agreement on Trade and Tarriffs (GATT), it withdrew and, along with the European Union, formed the alternative World Trade Organization (WTO), whose treaties were not burdened with matters seen as “unrelated” to trade, such as human rights, labor standards, or environmental protection. Ironically, they note that the very process of delegitimizing international law that results from fragmentation furthers the imbalance of power among states.

Subjects: Conflict of Laws, International Monetary Fund, NAFTA/GATT, Trade Conditionality, World Bank, World Trade Organization (WTO)
Newsletter: Vol 7, Issue 3
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Diamond, Stephen F. , "Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle", Pepperdine Law Review v. 29 (2001) p. 115-146

Abstract:
In Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle, Professor Diamond presents a description and analysis of the conflicts at the WTO meetings in Seattle in 2000 and the subsequent debates over normalizing trade relations with China. The piece details the strategies by and conflicts between the major actors -- the AFL-CIO, the Clinton administration, and several leading labor rights NGOs. The piece argues that international labor rights activists should focus on the issue of economic development, and put issues such as living wage guarantees and reasonable hours and working conditions on the table at the WTO. He says that such an approach can both improve the economic well being of workers in the developing countries and sustain the economic welfare of those in the developed world.

Subjects: Case Studies: Country-Specific, Child Labor, China, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 4, Issue 2
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diCaprio, Alisa , "Are Labor Provisions Protectionist?: Evidence from Nine Labor-Augmented U.S. Trade Arrangements", Comparative Labor Law & Policy Journal v. 26 no1 (2004) p. 1-34

Abstract:
This article explores whether labor provisions in U.S. trade arrangements have been used by protectionist interests to block imports. The first section gives a brief historical background on the four types of worker rights provisions that are found in modern U.S . trade arrangements: 1) unilateral trade preferences, 2) bilateral trade agreements, 3) free trade agreements, and 4) "other" provisions (i.e., provisions that do not fit within the first three categories). The second section analyzes the extent to which the labor provisions are a protectionist mechanism to block imports. Here the author examines the stage at which a labor provision is put into a trade arrangement, whether it be in the initiation, design, or actual implementation stage. She argues that it is misleading to characterize labor provisions as protectionist when the reason for their inclusion is to advocate human rights in general or when they are used as a threat ( i.e., threatened withdrawal of benefits or monetary sanctions), rather than actually implemented. The author concludes that the role of labor protective provisions will probably diminish because the humanitarian and labor groups that advocate them are becoming disillusioned with the leverage they provide, and are seeking methods with more immediate results.

Subjects: Labor Rights in General (Misc.), NAFTA/GATT, Trade Conditionality
Newsletter: Vol 4, Issue 12
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Fernandez-Kelly, Patricia, "NAFTA and Beyond: Alternative Perspectives in the Study of Global Trade and Development", Annals of The American Academy of Political and Social Science (March 2007) p. 266-287

Abstract:
This article introduces and summarizes 12 articles which assess the multiple meanings of “free trade,” in particular NAFTA, as a neoliberal political-economic project. To place the volume in intellectual and political context, the author gives a concise but fluid history of the practices and ideas of liberalism from the 1870s to the present. This includes discussion of how early liberalism, utilitarianism and libertarianism, as well as the economic upheavals of the 20th century, contributed to neoliberalism. Neoliberalism represents a continuation of earlier theorists’ faith in individual freedom, and in practice has yielded uneven and unexpected effects.

Subjects: NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 6
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Finkin, Matthew W., "International Governance And Domestic Convergence In Labor Law As Seen From The American Midwest", Indiana Law Journal v. 76 (Winter 2001) p. 143-172

Abstract:
This article explores the possibilities for developing transnational labor standards appropriate for a global economy. The author covers the six major proposed processes or models with the potential to implement global labor standards: 1) the common market route, 2) the ILO, 3) extraterritorial application of domestic law, 4) trade agreements with preferences linked to the observance of specific labor regulations, 5) trade agreements which mandate a country’s observance of its own labor regulations, and 6) corporate codes of conduct. The author then argues that the potential for such standardization seems to be hindered by the unwillingness of the current U.S. legal system to learn about or emulate the labor standards developed in European countries. Through a comparison of labor standards in two states within the U.S. -- Indiana and Minnesota -- the author demonstrates the gulf between jurisdictions even within the U.S. system. The author argues that when courts in Indiana are unwilling to accept precedent from Michigan, they are at least equally unlikely to guidance from labor standards from Germany.

Subjects: Extraterritorial Application of Law, International Labour Organization (ILO), Labor Rights in General (Misc.), Trade Conditionality
Newsletter: Vol 2, Issue 8
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Glass-Hess, Laura, "Ready or Not, Here Comes DR-CAFTA: Comparing the Right of Association in Mexico, Guatemala, and El Salvador", Georgia Journal of International and Comparative Law v. 35 (Winter 2007) p. 333-368

Abstract:
This Note assesses the feasibility of Dominican Republic-Central America Free Trade Agreement's (DR-CAFTA) mirroring of NAFTA's labor regulations as they were embodied in the "enforce-your-own-laws" provisions of the NAALC side-agreement. The author compares the existing right of association laws and enforcement practices of Guatemala and El Salvador with those of Mexico., She concludes that the current statutory structures and rule-of-law situations in Central America are even weaker than those in Mexico. She argues that reliance on soft labor enforcement provisions and strong economic pressures have not improved Mexico's labor rights situation, and hence will harm El Salvador and Guatemala's weaker labor climates. Because of this difference, DR-CAFTA needs a more "hands-on" agreement. She concludes by stating that "without strong enforcement of labor provisions, the DR-CAFTA will only hasten the 'race to the bottom' in Latin America, with disastrous results for Central American workers."

Subjects: CAFTA, Case Studies: Country-Specific, Free Trade Agreements, NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 7
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Howse, Robert, "Back to Court After Shrimp/Turtle? Almost but not Quite Yet: India’s Short Lived Challenge to Labor and Environmental Exceptions in the European Union’s Generalized System of Preferences", American University International Law Review v. 18 no1333 (2003) p. 1333-1381

Abstract:
In this article, the author discusses the WTO’s Appellate Body ruling in United States – Import Prohibition of Certain Shrimp & Shrimp Products (“Shrimp/Turtle”), in which the WTO panel overruled a previous holding that Article XX prevents exporting countries from restricting imports on policy grounds. The discussion of Shrimp/Turtle occurs in the context of analyzing a claim brought by India against labor and environmental exceptions in the European Union’s Generalized System of Preferences. India’s claim specifically addressed limitations on market access that the EU imposed on the basis of labor, environmental, and drug enforcement concerns. The author contends that the new ruling created a new baseline for the labor and environment debate at the WTO. The author suggests that the general jurisprudential approach that the Body adopted in this case would likely impact future litigation concerning labor and environmental conditionality in GSP schemes. The conclusion presents various possible outcomes of a challenge to such preferences.

Subjects: Case Studies: Country-Specific, European Union, Generalized System of Preferences (GSP), India, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 3, Issue 1
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Kolben, Kevin, "Trade, Monitoring, and the ILO: Working to Improve Conditions in Cambodia’s Garment Factories", Yale Human Rights & Development Law Journal v. 7 (2004) p. 79-107

Abstract:
This article provides an analysis of the labor standards provision in the U.S.-Cambodia Bilateral Textile Trade Agreement that was signed on Jan. 20, 1999 (Agreement). The provision creates quota incentives for the Cambodian garment industry to bring it into substantial compliance with international labor standards and Cambodian labor law. The article starts with a description of the poor working conditions in Cambodia’s garment factories during the time the Agreement was signed. Though there were Cambodian labor laws in place, they were seldom enforced due to corruption of labor inspectors and politically-controlled unions. The next section gives a brief overview of the regulations of textile imports in international trade, highlighting the fact that the labor standards provision in the Agreement was the first of its kind and a creative approach to linking trade privileges with labor rights. The next section evaluates the International Labor Organization’s (ILO) initial proposal, the U.S counter-proposal, and the final joint proposal of the program required by the Agreement to improve working conditions of the Cambodian textile and apparel sector. The ILO’s proposal aimed to improve industrial relations by strengthening the Cambodian labor inspection system so that they may effectively monitor and enforce Cambodia’s labor laws. The U.S. counter-proposal’s goal was to implement a system of monitoring that would enable it to determine if the Cambodian garment industry was in substantial compliance with international labor standards and local labor laws. The U.S. proposed that the ILO undertake independent monitoring, visiting individual factories to make assessments and reports. The final proposal included aspects of both. The author critiques all three proposals and proposes a set of criteria that may be used as a guide for similar programs in the future.

Subjects: Case Studies: Country-Specific, International Labour Organization (ILO), Trade Conditionality
Newsletter: Vol 4, Issue 5
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Kolben, Kevin, "The New Politics of Linkage: India’s Opposition to the Workers’ Rights Clause", Indiana Journal of Global Legal Studies v. 13 (2006) p. 225-258

Abstract:
Based on interviews with Indian government officials, employers, labor activists, journalists, and others, this article documents and categorizes some of the more salient arguments made by lesser developed countries (LDCs) against proposals by Western scholars and labor activists to link international trade and improved labor standards through the inclusion of a workers' rights provision (or "social clause") within the WTO framework. The author delineates three basic categories of arguments – economic, political and structural – typically made as part of the LDCs’ case against linkage. Economic arguments against linkage generally involve concerns that calls from the West to improve labor standards ultimately stem from protectionist motives and that linking trade and labor standards will have the effect of protecting the domestic markets of the Western countries from cheap goods, thereby reducing trade and employment in the LDCs. Political arguments against linkage are often directed at protecting sovereignty and opposing globalization, which is understood as serving the interests of world financial institutions. Thus, some Indian labor activists and unionists who oppose the WTO, the World Bank and the IMF, will not support a social clause in the WTO, for fear that doing so would legitimize, but not fundamentally alter, the oppressive nature of structural adjustment programs, neoliberalism and other aspects of these institutions. Structural arguments focus on deficiencies of the WTO for enforcing labor standards. For example, some interviewees pointed out that the ILO, as the organization most knowledgeable about labor rights issues, should be strengthened rather than relying on the WTO, which has relatively little familiarity with issues of labor standards. Similarly, because the WTO is a treaty between governments, only governments but not unions or NGOs would have standing to raise complaints for violations of a proposed social clause. Another concern expressed is that trade sanctions are too blunt an instrument because they punish an entire national economy and cannot be calibrated to reach only those employers who violate labor standards while rewarding those employers that honor them. The author concludes by suggesting that scholars and activists who support linking labor rights and trade pay closer attention to the concerns voiced by the various sectors of Indian society and government and that, for the near future, regional trade pacts and bi-lateral agreements are the more likely fora in which to achieve linkage labor standards and trade issues.

Subjects: Case Studies: Country-Specific, India, International Labour Organization (ILO), Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 6, Issue 2
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Lieberwitz, Risa L., "Linking Trade and Labor Standards: Prioritizing the Right of Association", Cornell International Law Journal v. 39 (2006) p. 641-653

Abstract:
Prompted by recent debates over linking bilateral, regional and multilateral trade agreements with internationally recognized labor standards, the author argues that proponents of such linkage have erred in placing their focus on mandating substantive workplace rights in trade agreements. The author argues that the most important demand to raise is the "procedural" right of full freedom of association for workers affected by the global expansion of capital and international trade agreements. She argues that the exclusive focus on substantive rights is doomed to failure because it underestimates "the power of transnational corporations to continue their global expansion and search for untapped cheap labor." An emphasis on freedom of association instead would allow greater flexibility for workers to confront localized conditions and pursue their own demands for substantive workplace rights through collective bargaining. By assisting workers in setting and pursuing their own priorities for improved labor standards, the author argues that a regime protecting freedom of association would encourage economic growth and development by preserving the competitive advantage of countries of the global South within the global division of labor. Additionally, the localized control of workers over their own collective bargaining demands would, the author argues, solve many of the on-site monitoring and enforcement problems that have been idenitified by other efforts to link trade and labor standards. Even where freedom of association is unlikely to be adequately enforced in the short term, the author argues that this approach nonetheless provides a more promising alternative because it invests power in those most affected by globalization, and begins the long-term process of building cross-border alliances among unions and workers, rather than perpetuating the notion that workers' interests are necessarily tied to improving the competitiveness of "their" employer, "their" sector, or "their" country, at the expense of workers elsewhere.

Subjects: Collective Bargaining, Free Trade Agreements, Labor Rights in General (Misc.), Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 5
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Lin, Li-Wen, "Legal Transplants through Private Contracting: Codes of Vendor Conduct in Global Supply Chains as an Example", American Journal of Comparative Law v. 57 (2009) p. 711

Abstract:
The author argues that codes of vendor conduct in international supply chains function as legal transplants. Legal transplants occur when laws, rules, or legal structures are transplanted from one country to another. The author identifies two ways in which transplantation occurs: through ‘hard’ approaches such as the rules that the European Union and World Trade Organization impose upon their members, and through ‘soft’ approaches such as model codes of conduct. In the globalized economy, non-state actors can also transplant laws. The author argues that vendor codes of conduct, which large corporations such as Gap and Wal-Mart use to determine supplier eligibility, are examples of transplanted laws. These transplanted quasi-legal regulations are especially effective in countries where legal systems are weak and the sanction of losing business is a greater threat than sanctions imposed by law. The author argues that codes of vendor conduct often set the template for labor laws in developing nations, and thus should be strengthened to address the labor issues in such countries.

Subjects: Case Studies: Industry-Specific, Corporate Codes of Conduct, Trade Conditionality
Newsletter: Vol 13, Issue 3
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Malloy, Michael P., "Human Rights and Unintended Consequences: Empirical Analysis of International Economic Sanctions in Contemporary Practice", Boston University International Law Journal v. 31 (2011) p. 75

Abstract:
The author empirically analyzes the use of sanctions in response to humanitarian crises in four countries: Zimbabwe (then Southern Rhodesia), Belarus, Myanmar, and South Africa. The author finds that whether the sanctions are unilateral or multilateral has little effect on the design or the effectiveness of the sanctions. The author notes that it is difficult to measure the long-term effectiveness of sanctions because nations under sanctions gradually adapt to economic constraints, or develop alternative methods of capitalization. However, the author finds that the biggest predictor of whether the sanctions will be effective in the short term is the purpose of the sanction. Sanctions imposed because of national security concerns tend to be immediately effective, whereas sanctions imposed to remedy human rights abuses, such as child labor or trafficking, are less effective. This is likely because labor and human rights practices are ingrained in economic and political systems, and, in the case of labor abuses, are often perpetrated by non-governmental actors.

Subjects: Labor Rights as Human Rights, Trade Conditionality
Newsletter: Vol 13, Issue 3
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Mumford, Todd, "Voluntary International Standards: Incorporating 'Fair Trade' within Multilateral Trade Agreements", Southwestern Journal of Law and Trade in the Americas v. 14 (2007) p. 171-192

Abstract:
This article proposes the incorporation into existing multilateral trade agreements, such as the North American Free Trade Agreement (NAFTA), a uniform and voluntary set of international labor standards, which could be certified by third party nongovernmental organizations (NGOs). The model for this proposal derives from the U.S. Department of Agriculture's adoption of a standardized definition for "organic" food products, which, under the Organic Foods Production Act of 1990, provides a uniform set of standards, which can nonetheless be monitored the certification processes of multiple third party NGOs. The underlying concern of the author is to ensure uniformity in the meaning of "fair trade," so as to prevent a proliferation of competing definitions which may be used by big businesses to evade compliance and ultimately undermine consumer confidence in the integrity of the "fair trade" label. The author points out that such uniform standards are not prohibited under the terms of NAFTA or other multilateral free trade agreements, so long as they do not function as a "technical barrier to trade."

Subjects: Case Studies: Country-Specific, Labor Rights in General (Misc.), NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 7, Issue 7
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Pirret, Michael, "American Labor Unions and Free Trade Agreements: A Struggle for Compatibility", Wayne Law Review v. 50 (Winter 2005) p. 1257-1275

Abstract:
This article argues that free trade, if practiced efficiently, will increase labor standards in even the poorest countries. The author contends that the U.S. manufacturing sector, formerly union-strong, has lost the most jobs to free trade. As union numbers shrink, so does its political power to keep manufacturing jobs at home. Section II describes the dynamic of global trade. Business pursues cheap labor in poor countries, which devalue their currency to encourage exports to the US, and the resulting trade imbalance hurts US business and encourages more outsourcing. The author discusses NAFTA, and new trade pacts with Chile, Singapore and Jordan. Except for Jordan, which provides for labor standards enforcement, these pacts spur a "race to the bottom dilemma." Section III argues that in the long run, the export of manufacturing to poor countries is good for all. As business increases production overseas, it will spread profits to poor. It will also create new high-tech jobs in the US. The author concludes that unions should accept trade liberalization, permit restructuring, and allow wage and benefit flexibility so that "producers can keep costs low and ride out boom-and-bust cycles" (p. 1275). This way, US labor can simultaneous become more relevant and support the increase of labor standards in poor countries.

Subjects: NAFTA/GATT, Trade Conditionality
Newsletter: Vol 5, Issue 4
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Reichman, Daniel, "Justice at a Price: Regulation and Alienation in the Global Economy", Political and Legal Anthropology Review v. 31 (2008) p. 102-117

Abstract:
This article compares and contrasts three aspects of the international coffee trade violence by landless Honduran families against the foreign and absentee owner of a coffee farm, fair trade consumerism in the global North, and the now defunct system of wage and price controls of the International Coffee Agreement (ICA) that have collapsed under increasingly globalized market condition since1989 to suggest that structural changes in the relationship between states brought on by globalization have led citizens to attempt to impose collective principles on economic behavior through new, albeit partial and alienated, forms of regulation outside the boundaries of the nation-state. The author sees the popular violence in Honduras and the increasing preoccupation with"fair trade" coffee in the North as symptoms of the demise of the ICA; in the absence of regulation by laws, treaties and states, people resort to localized and highly individualized behaviors to comprehend their role as moral actors within the impersonal global market. Despite their emphasis on moral affirmation and personal responsibility, the author sees these forms of political subjectivity as inadequate to the task of regulating the global economy in the interest of social solidarity.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Corporate Accountability, NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 7, Issue 11
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Stone, Katherine V.W., "To the Yukon and Beyond: Local Laborers in a Global Labor Market", Journal of Small and Emerging Business Law v. 3 no1 (Summer 1999) p. 93-130

Abstract:
This article explores the possibilities for effective protection of labor rights in the emerging global labor market. It explores existing forms of transnational labor regulation, including both hard regulation, i.e., regulation by state-centered institutions, and soft regulation, i.e., regulation through private actors responding to market forces. The author finds that existing regulatory approaches are inadequate to ensure that the global marketplace will offer adequate labor standards to its global workforce. She proposes new approaches to global labor regulation, approaches that blend hard and soft law by reshaping market forces and embedding them in a regulatory framework that is protective of core labor rights.

Subjects: Corporate Codes of Conduct, European Union, International Labour Organization (ILO), Labor Rights in General (Misc.), NAFTA/GATT, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 1, Issue 2
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Taylor, Chantell, "NAFTA, GATT, and the Current Free Trade System: A Dangerous Double Standard for Workers' Rights", Denver Journal of International Law and Policy v. 28 (Fall 2000) p. 401-435

Abstract:
This article contrasts the enforcement mechanisms for protecting corporate and investor rights under the North American Free Trade Agreement (NAFTA) and the World Trade Organization/General Agreement on Trades and Tarrifs (WTO/GATT) with those provisions for the enforcement of labor rights in the International Labor Organization (ILO) and the NAFTA side letter on labor issues, known as the North American Agreement on Labor Cooperation (NAALC). NAFTA provides private investors with standing to sue national governments directly, the right to binding arbitration if an investor believes that a government has breached an obligation under NAFTA that caused the investor to incur a loss and provisions for unlimited damages for corporations when they lose money as the result of a federal law that does not comply with NAFTA. The WTO contains similarly strong enforcement mechanisms for corporations against governments, including penalties and trade sanctions. By contrast, the ILO has no coercive enforcement mechanisms while those included in NAALC are extremely limited. Despite hortatory language in the NAALC concerning freedom of association, the right to bargain collectively, the right to strike, the right to minimum employment standards, and so on, NAALC's Ministerial Council can only hear complaints concerning forced labor, equal pay for men and women, worker compensation, and protection of migrant rights. Further, it is only required to respond to disputes in three areas - child labor, minimum wages and occupational health and safety. Even then, the Ministerial Council may only respond if proof exists of a "persistent pattern of failure by the other Party to effectively enforce" its own labor laws. If the Ministerial Council declines to review a matter, then it may be referred to an Evaluation Committee of Experts, whose remedies are limited to "non-adversarial and non-binding recommendations on the issue." The author argues that protecting workers should be equal to dismantling trade barriers and protecting intellectual property, and considers it an "unacceptable evasion of responsible governance to strategically exclude labor issues from the heart of global commerce."

Subjects: Free Trade Agreements, Labor Rights in General (Misc.), NAFTA/GATT, Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 3
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Travers, David, "You Have to Fight for your Right to Work: The U.S.-Chile Free Trade Agreement and Global Labor Standards", Suffolk Transnational Law Review no29 (Summer 2006) p. 337-361

Abstract:
This article discusses the domestic pressures within the United States and Chile that resulted in the labor standards and enforcement procedures of the U.S.-Chile Free Trade Agreement of 2003. On the one hand, the author argues that the Agreement needed to have some labor standards enforcement provisions in order to appease critics in organized labor and the U.S. Congress. At the same time, however, the democratically elected post-Pinochet government in Chile did not want to be seen as surrendering sovereignty to the United States under the rubric of "international labor standards." The resulting compromise requires Chile to provide access to dispute resolution mechanisms for labor standards violations only if Chile has failed to "effectively enforce its [own] labor laws." This approach is in stark contrast to that of the Free Trade Agreement of 2001 between the United States and Jordan, which provides access to dispute resolution mechanisms in the event of violations of internationally recognized labor standards, such as those embodied in the Conventions of the International Labor Organization (ILO). According to the author, the increased global competition among workers resulting from the relatively loose labor standards of the U.S.-Chile FTA will force the North American workforce prioritize education and skills training, thereby "replac[ing] the idea of entitlement with competition, making hard-work and dedication to self-improvement through education life-long necessities." The author concludes that the Chile Agreement's approach to labor standards should serve as a model for other U.S. trading partners in future free trade agreements.

Subjects: Case Studies: Country-Specific, Free Trade Agreements, International Labour Organization (ILO), Trade Conditionality
Newsletter: Vol 5, Issue 10
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Wells, Don, "Best Practice in the Regulation of International Labor Standards: Lessons of the U.S.-Cambodia Textile Agreement", Comparative Labor Law & Policy Journal no27 (2006) p. 357-371

Abstract:
This article is a post-mortem assessment of the U.S.-Cambodia Textile Agreement (UCTA), which went into effect in 1999 and expired in 2005. The UCTA was unique among U.S. trade agreements in several respects. By linking increased market access to systematically and publicly monitored increased compliance with labor standards, it was the only bilateral U.S. trade agreement to use market incentives instead of punishments to motivate government and employer compliance with labor standards. Also, UCTA used the ILO, rather than private firms or NGOs, to monitor compliance with labor standards, thereby making claims of improved working conditions under the UCTA more credible than similar claims under other trade agreements. The author notes that between 1999 and 2004, Cambodia went from one of the worst violators of core ILO labor standards to ranking ahead of all its regional competitors in compliance. Based on these reports of increased compliance, the United States increased Cambodia’s garment export quota in each year of the agreement, so that Cambodia’s apparel exports increased four-fold over the life of the UCTA with about two-thirds of these exports going to the U.S. market. Because the value of these quota increases far outstripped the costs of increased compliance, employers in the Cambodian garment industry – most of which is foreign owned – could afford to pay higher wages to garment workers. Although the author notes that there were some problems of implementation and enforcement, particularly in protecting freedom of association and reducing anti-union discrimination, he concludes that the UCTA has benefited Cambodian garment workers, and that, with appropriate modification, the UCTA serves as a potential model to be replicated and extended to other countries and other industries.

Subjects: Case Studies: Country-Specific, International Labour Organization (ILO), Trade Agreements, Trade Conditionality
Newsletter: Vol 6, Issue 2
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Wu, Mark, "Free Trade and the Protection of Public Morals: an Analysis of the Newly Emerging Public Morals Clause Doctrine", Yale Journal of International Law v. 33 (2008) p. 215-269

Abstract:
The article discusses "public morals exception" clause of the General Agreement on Tariffs and Trade, which allows states to depart from the free trade principles of the treaty when "necessary to protect public morals." Labor scholars and advocates of international labor standards have argued that the clause, Article XX, should be interpreted to enable a government to impose trade restrictions against a particular good whose production violates international labor standards, such as soccer balls produced with child labor. Thus far, only one case has explicated the meaning of this clause – U.S.-Gambling, in which the Carribean country of Antigua brought a WTO complaint against the United States for banning crossborder gambling and internet betting services ostensibly to counter organized crime, money laundering and fraud and to protect the "public health and morals" of its citizens A WTO Appellate Body held that the United States could ban internet gambling from entering its territory if it could show that the measure was not done for discriminatory purposes. Because the U.S.-Gambling case involved a country claiming to protect the morals of its own citizens, it does not address other kinds of fact patterns of great concern to labor advocates. The article concludes by discussing several alternative approaches for deciding future cases under the "public morals" exception, including originalism (restricting public morals to those matters intended in1947 when the GATT was signed), unilateraism (allowing each country to define and act on its own definition of public morals) and transnationalism (requiring that the public morals be either universally or at least widely recognized before serving as a legitimate basis for trade sanctions).

Subjects: NAFTA/GATT, Trade Agreements, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 7, Issue 4
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