The Promotion of Social Rights and Labour Standards in EU External Trade Relations

Velluti, Samantha

doi:10.1007/978-3-030-56748-4_5

Samantha Velluti³

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Abstract

In the past decade the European Union (EU) has been at the forefront of attempts to strengthen and promote the social dimension of globalization, focusing chiefly on the promotion of labour standards internationally, through increased cooperation with the International Labour Organization (ILO) and through its external trade policies.

The chapter incorporates some material previously published in journals and edited volumes, as follows: Velluti (2015, 2016b) and Velluti and Van Den Putte (2018).

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Proliferation of Transnational Labour Standards: The Role of the ILO

European Union and Human Rights: Reducing Inequalities and Asymmetries in the Context of the Economic Crisis

Local Interests and Social Integration in Europe

Notes

1.
European Commission (2017a).
2.
Velluti (2016c).
3.
ILO (2016), Velluti (2015), Velluti and Van den Putte (2018), Harrison et al. (2019), Ebert (2015), and Campling et al. (2015).
4.
Cremona (2001).
5.
Perulli (2014), at 37.
6.
Article 3(3) TEU.
7.
Reddy (2015), at p. xv; for further analysis, see Damjanovic (2013); for an account of EU social and employment law and policy, see Velluti (2010), Chaps. 4 and 5.
8.
Perulli, above 5, 34.
9.
European Commission (2017b).
10.
Raube and Wouters (2016).
11.
Van den Putte (2015a).
12.
Sustainable development is a concept that has been present in EU law since 1997 when the Treaty of Amsterdam referred to it as an overarching objective of EU Policies, which encompasses, among others, labour rights. Article 3(3) TEU provides that: ‘The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance;’ [Highlighted by the author] it is also a principle guiding the external action of the EU, see Article 3(5) TEU, which provides that: ‘ In its relations with the wider world, the Union shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, […] as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter’ [Highlighted by the author]; Article 21(1) and (2)(d) TEU externalize the EU’s commitment to sustainable development where it states that: ‘The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world […] and ‘foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty’; the European Commission started to develop the idea that sustainable development should be mainstreamed in all relevant EU policies including external trade and that the EU trade policy should equally support economic growth, social development and environmental protection. The EU has long had a Sustainable Development Strategy, which it regularly reviews and assesses, see Communication from the Commission A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development (Commission’s proposal to the Gothenburg European Council) /* COM/2001/0264 final */; further information can be found at: https://ec.europa.eu/environment/sustainable-development/strategy/index_en.htm, accessed on 14 June 2020. For an analysis of the legal concept of sustainable development, see Cordonnier Segger and Khalfan (2004), Barral (2012), and Grosse Ruse-Khan (2010).
13.
These agreements are examined in Sect. 5.3 of this chapter.
14.
Van den Putte and Orbie (2015).
15.
Mantouvalou (2012).
16.
Reid (2015).
17.
Leary (1996), at p. 178.
18.
Salmon (2001).
19.
van Liemt (1989), at 434.
20.
Sen (1999) and Nussbaum (2011); for a detailed account of the capabilities approach, see Barnard et al. (2001), at 465–467; Langille (2019); see also Supiot (2001); this is the English version of what is known as the “Supiot Report”, A. Supiot (general rapporteur) et al., Transformation of Labour and Future of Labour Law in Europe, Final Report (European Commission, Luxembourg, 1999) where the central thesis is the need to develop forms of economic security which are not confined to the traditional or standard employment relationship but need to consider the wider significance of employment in terms of people’s well-being and living conditions.
21.
European Commission—ILO, Memorandum of Understanding concerning the establishment of a strategic partnership between the International Labour Organisation and the Commission of the European Communities in the field of Development, 17 July 2004, Brussels and 16 July 2004, Geneva, available at https://www.ilo.org/brussels/ilo-and-eu/european-commission/WCMS_169299/lang--en/index.htm, accessed on 23 March 2020.
22.
Postnikov and Bastiaens (2014).
23.
Vogt (2015a).
24.
CARIS (2010).
25.
Ramopoulos and Wouters (2015).
26.
Articles 3(1)e TFEU, 206, 207 and 218 TFEU; for further detailed analysis, see Chapter 3 of this book.
27.
Ibid.
28.
Hillion and Koutrakos (2010) and Timmermans (2013).
29.
The only exceptions are the GSP scheme and the 2008 EU-CARIFORUM Economic Partnership Agreement (EPA) with Caribbean countries (CARICOM and the Dominican Republic), where a weak form of conditionality is envisaged.
30.
United Nations Conference on Trade and Employment, Havana Charter for an International Trade Organization, Havana, Cuba, 24 March 1948. A full text is available at: https://www.wto.org/english/docs_e/legal_e/havana_e.pdf, accessed on 14 June 2020.
31.
Hepple (2005), Sapir (1995), Charnovitz (1987), Leary (1996), Kaufmann (2007), Ch. 3 and Cottier and Caplazi (2007).
32.
Cottier and Caplazi, above n. 31, p. 551.
33.
Ibid., p. 552.
34.
Teague (2002), at 326.
35.
The proposal made by the US for the terms of reference of the working party was:

To examine the possible relationship of internationally recognised labour standards to international trade and to the attainment of the objectives of the General Agreement. In the light of this examination, to consider any proposals and suggestions that may be put forward with respect to issues relating to trade and the observance of internationally recognized labour standards; and to report its findings and conclusions to the Council

GATT (1987) quoted in Addo (2015), at p. 148; see also Sutherland (1998), at 92.
36.
Kenner (2013a).
37.
Teague, above no. 34, at 326 citing Hongiu Koh, see Hongju Koh (1997).
38.
Burgoon (2004); European Parliament, Resolution of 9 February 1994 on the Introduction of a Social Clause in the Unilateral and Multilateral Trading System (OJ C 61, 28.2.1994, p. 89). The European Parliament’s approach in favour of a code of basic social standards was based on two inseparable principles clearly laid down in the Sainjon report: (a) the observance of labour rights, in particular certain minimum social standards, was considered an essential requirement of natural justice, which should always govern international trade; (b) the possible introduction of a social clause in agreements regulating international trade should never be an excuse for increasing protectionism against developing countries. On the contrary, the instrument of the social clause should enable the objectives of social justice and fair competition to be achieved in the context of the increasing interdependence between national economies and the of globalisation of the economy and trade.
39.
Hepple, above note 31, Ch. 10.
40.
WTO, Ministerial Conference, Singapore, WT/MIN(96)/DEC/Ministerial Conference Singapore: Declaration, § 4, 13 December 1996.
41.
E.g. Article 45 of the 1982 Sixth International Tin Agreement; Article 28 of the 1987 International Sugar Agreement; Article 53 of the 1987 International Natural Rubber Agreement and Article 42 of the 2010 International Cocoa Agreement.
42.
Council Conclusions on the third Ministerial Conference of the WTO, 26 October 1999.
43.
See infra Sect. 5.2.1.2.
44.
Marceau (2009), at p. 545; for further analysis, see Conrad (2011), Howse and Regan (2000), and Jackson (2000).
45.
Marceau, above n 44, p. 549.
46.
Maupain (2005a).
47.
Maupain (2005b).
48.
Organization for Economic Cooperation and Development (OECD) (1996, 2000).
49.
Further information is available at: https://www.un.org/development/desa/dspd/world-summit-for-social-development-1995.html, accessed on 20 March 2020.
50.
Granger and Siroën (2006), at p. 4.
51.
All EU member states have ratified the relevant conventions.
52.
For further analysis, see Kenner, above n 36, pp. 309–310.
53.
Cottier and Caplazi, above n 31, p. 557.
54.
Langille (1997), at 32; Cottier and Caplazi, above n 31, p. 557.
55.
Kenner, above n 36, p. 310.
56.
Breining-Kaufmann (2005), p. 116.
57.
The corresponding provisions for the General Agreement on Trade in Services (GATS) is Article XIV GATS.
58.
Bartels (2002, 2009); see also Vásquez (2003). It should be noted that Article XX GATT on General Exceptions comprises two cumulative requirements. In particular, for a GATT-inconsistent measure to be justified under Article XX, a WTO member must prove: first, that its measure falls under at least one of the exceptions (e.g. paragraphs (b)–(g), two of the ten exceptions under Article XX) and, then, that the measure satisfies the requirements of the so-called “Chapeau” of Article XX, namely that it is not applied in a manner which would constitute ‘a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail’, and is not ‘a disguised restriction on international trade’; for an analysis of the “Chapeau” of Article XX GATT, see Bartels (2015).
59.
Marceau, above no. 44, 543.
60.
WTO, Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 U.N.T.S 154, Preamble, available at: https://www.wto.org/english/docs_e/legal_e/04-wto.pdf, accessed on 20 March 2020.
61.
E.g. relevant United Nations (UN) General Assembly Sustainable Development Goals (SDGs or Global Goals for Sustainable Development) targets related to labour standards, 8.8, 16.3, 16.5 and 16.b. further information is available at: https://sustainabledevelopment.un.org/?menu=1300, accessed on 20 March 2020.
62.
Marceau, above no. 44, p. 543, citing the Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, paras 153–55 and 130.
63.
Marceau, above no. 44, p. 543; for further discussion, see Van Damme (2009).
64.
McCrudden and Davies (2000).
65.
Alston (2004, 2005).
66.
Articles 12 and 28 EUCFR.
67.
Articles 5 and 32 EUCFR.
68.
Article 23 EUCFR.
69.
World Commission on the Social Dimension of Globalization, Report on A Fair Globalization: Creating Opportunities for All, https://www.ilo.org/public/english/wcsdg/docs/report.pdf, accessed 14 June 2020.
70.
European Commission—ILO, Memorandum of Understanding concerning the establishment of a strategic partnership between the International Labour Organization and the Commission of the European Communities in the field of Development, 17 July 2004, Brussels and 16 July 2004, Geneva, https://www.ilo.org/brussels/ilo-and-eu/european-commission/WCMS_169299/lang--en/index.htm accessed 14 June 2020; ILO, The ILO and the EU, partners for decent work and social justice. Impact of Ten Years of Cooperation, Brussels, November 2012, http://www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva/---ilo-brussels/documents/publication/wcms_195135.pdf accessed 14 June 2020.
71.
Kenner (2013b).
72.
Interview with Marco Ferri, First Counsellor in Social Affairs of the Permanent Delegation to the United Nations Office and other International Organizations in Geneva, 24 May 2013, Geneva, Switzerland.
73.
Information on the Europe 2020 Strategy is available at: http://ec.europa.eu/europe2020/index_en.htm accessed 25 July 2014; for the ILO’s Global Jobs Pact: http://www.ilo.org/jobspact/lang--en/index.htm accessed 25 July 2014.
74.
Council of the European Union, EU Strategic Framework and Action Plan on Human Rights and Democracy, Luxembourg, 25 June 2012.
75.
European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Increasing the Impact of EU Development Policy: an Agenda for Change COM(2011) 637 final.
76.
ILO (2011a, b).
77.
Langille (1997), at 27.
78.
Marceau, above no 44, at p. 540.
79.
ILO, Report on The Social Dimensions of Free Trade Agreements, 6 November 2013, 6–7, available at http://www.ilo.org/global/research/publications/WCMS_228965/lang--en/index.htm, accessed on 20 March 2020; see also European Commission, Final report on The Use, Scope and Effectiveness of Labour and Social Provisions and Sustainable Development Aspects in Bilateral and Regional Free Trade Agreements, 15 September 2008, Chapter 2, available at http://ec.europa.eu/social/main.jsp?catId=89&furtherNews=yes&langId=en&newsId=480, accessed 10 December 2014. For an engaging discussion and proposal for a linkage between international trade and labour standards, see Barry and Reddy (2008); see also Addo, above no. 35, Ch. 2; Arnold (2005); Melo Araujo (2018), at 234–237.
80.
Reddy, above no. 7, at vi–xi.
81.
Ibid., at ix–xi.
82.
Jansen and Lee (2007), p. 2.
83.
Smith (1976), p. 456.
84.
Schmidt and Thatcher (2013).
85.
Schumpeter (1942), p. 83.
86.
Taking this further it is possible to argue that ‘while neoliberal political rationality is based on a certain conception of the market, its organization of governance and the social is not merely the result of leakage from the economic to other spheres but rather of the explicit imposition of a particular form of market rationality on these spheres,’ see Brown (2006), at 693.
87.
Cottier and Caplazi, above n 31, p. 566.
88.
Lee (1997), at 12.
89.
Jansen and Lee, above n 82, p. 2.
90.
Jansen and Lee, above no. 82, p. 10; see also pp. 14 and 90.
91.
Peels and Fino (2015), at 191; Barton et al. (2008), p. 144; Hepple, above n 31, p. 272.
92.
Cottier and Caplazi, above no. 31, p. 565.
93.
Lee, above n 88, at 6.
94.
Cottier and Caplazi, above no. 31, p. 565.
95.
Perulli, above no 5, at 31; see also Martens and Orbie (2018), at pp. 286–287; Cremona and Marín Durán (2012).
96.
International Labour Organisation (ILO), Constitution of the International Labour Organisation (ILO), 1 April 1919.
97.
Thomas (2009), Ch. 10, at p. 257.
98.
Ibid.
99.
Available at http://www.ilo.org/wcmsp5/groups/public/---dgreports/---cabinet/documents/genericdocument/wcms_371208.pdf, accessed on 20 March 2020.
100.
Perulli, above n 5, at 31.
101.
For a critical and philosophical analysis of the development and anti-development debate, see Rabbani (2011). By unpacking and deconstructing the main tenets of each discourse and examining the key conceptions as well as the underlying requirements and implications of the claims raised in each debate Rabbani maintains that beyond the seemingly apparent differences and opposing claims and goals there are important and fundamental similarities.
102.
Peels and Fino, above no. 91, 191; Montserrat Garibay (2009).
103.
The “domestic analogy” thesis embraces the idea that as the EU is becoming a global player it should pursue normative goals not only at home but also outside its borders; see European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Global Europe: Competing in the World—A Contribution to the EU’s Growth and Jobs Strategy, COM(2006) 567 final, at p. 5.
104.
Orbie and Khorana (2015), at 260.
105.
Krishna (2009).
106.
Orbie and Khorana, above no. 104.
107.
e.g. Article 50 of the 2000 Cotonou Partnership Agreement (CPA), Article 13(2) subpara. 2 of the 2011 EU-Korea FTA; these agreements are examined in Sects. 5.3.2.2 and 5.3.4 of this chapter.
108.
Cottier and Caplazi, above no. 31, p. 565.
109.
Ibid.
110.
Jansen and Lee, above no. 82, p. 16.
111.
Cottier and Caplazi, above no. 31, p. 565.
112.
Cottier and Caplazi, above no. 31, p. 578.
113.
Van den Putte and Orbie, above no. 14, at 274–278.
114.
Ibid.
115.
Tasioulas (2020).
116.
Ibid.
117.
Nickel (2007).
118.
Tasioulas, above no. 111.
119.
The expression “science of development” has been coined by Anghie, see Anghie (2000), at 281.
120.
Alessandrini (2010), Ch. 2; as Alessandrini tells us (p. 4): ‘this framework relies on three normative assumptions, namely: the establishment of an unquestionable dichotomy between advanced and backward societies; the reliance on a supposedly neutral economic rationality through which to bridge this gap; and the invocation of the help and expertise of the so-called advanced members of the international community and the specialized international economic and financial institutions in order to facilitate the development process.’ At the basis of this discourse is the idea of “failure” on the part of developing countries to develop their trade as fast as that of developed countries and the consequential need to seek the help of industrialised countries in order to redress this “failure” (p. 42). In this context, the author also acknowledges that the distinction between “developed countries” and “developing countries” is limitative and problematic and some scholars have replaced such distinction with terms such as the “Global North” and “Global South”. The latter used by the World Bank to refer to countries located in Asia, Africa, Latin America and the Caribbean and considered to have low and middle income compared to the Global North, which generally comprises the G8 countries, the United States, Canada, all member states of the European Union, Israel, Japan, Singapore, South Korea, as well as Australia and New Zealand and four of the five permanent members of the UN Security Council, excluding China. For further discussion and analysis, see Global South Studies Centre (2015) and Dados and Connell (2012).
121.
Foucault (1981).
122.
The conceptualization of development as discursive practice leads to its “professionalization” and “institutionalization”, which in turn creates an apparatus that organizes the production of forms of knowledge and the deployment of forms of power, relating to one another; Escobar (1995), pp. 5–6, 10, 32–39 and 41, 45–46.
123.
Bhambra (2014).
124.
Ibid., p. 156.
125.
Ibid., p. 117.
126.
Rabbani, above n 101, p. viii.
127.
The rising trend in the number of trade arrangements with labour provisions has steadily become a global phenomenon and it is not limited to the EU context; see Ebert and Posthuma (2011).
128.
Van den Putte and Orbie, above no 14, 263–283.
129.
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, OJ [2014] L94/65, 28.3.2014; see E. Van den Abeele, ‘Integrating social and environmental dimensions in public procurement: one small step for the Internal Market, one giant leap for the EU?’ ETUI Working Paper 2014.08, available at http://www.etui.org/Publications2/Working-Papers, accessed on 20 March 2020.
130.
Corvaglia (2017), pp. 174–180; Wiesbrock (2016).
131.
Ibid. 1.
132.
Article 18(2) and Recital 37; Annex X which lists the International Social and Environmental Conventions mentioned in Article 18(2), Article 69; see also Article 71 which is aimed at preventing subcontracting chains; for further discussions, see Corvaglia and Li (2018).
133.
Corvaglia and Li, above no. 133, 2.
134.
UNCTAD, ‘About GSP’, available at: https://unctad.org/en/Pages/DITC/GSP/About-GSP.aspx, accessed on 23 March 2020.
135.
The list of these countries which fulfil certain economic criteria in terms of poverty and non-diversification of exports is reviewed on a yearly basis. If beneficiaries no longer meet the requirements set out above, they will no longer be granted trade preferences under the standard GSP.
136.
Article I(1) GATT: ‘With respect to customs duties and charges of any kind […] any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.’
137.
WTO Waiver on the Generalized System of Preferences Decision of 25 June 1971, BISD 18S/24.
138.
Decision of 28 November 1979, Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (the “Enabling Clause”), GATT BISD, 26th Supp, 203, GATT Doc L/4903.
139.
Michalopoulos (2001).
140.
These conditions are contained in Article 2 (a) footnote 3 of the Enabling Clause, which itself refers to the Waiver of 1971.
141.
European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WTO Doc WT/DS246/R (2003) [7.161] (Report of the Panel) (‘Tariff Preferences Panel Report’); WTO Doc WT/DS246/AB/R, AB-2004-1 (2004) (Report of the Appellate Body) (‘Tariff Preferences Appellate Body Report’); Marceau, above no. 44, pp. 565–566; Harrison (2003) and Howse (2003).
142.
European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WTO Doc WT/DS246/R (2003) [7.161] (Report of the Panel) (‘Tariff Preferences Panel Report’); WTO Doc WT/DS246/AB/R, AB-2004-1 (2004) (Report of the Appellate Body) (‘Tariff Preferences Appellate Body Report’).
143.
Bartels (2007).
144.
These are the vulnerability criteria, which have been partly amended further to the reform of the GSP Scheme. A vulnerable country means a country:
- which is not classified by the World Bank as a high-income or upper-middle income country during three consecutive years (in other words, is a beneficiary of the standard GSP);
- whose imports into the EU are heavily concentrated in a few products (the 7 largest sections of its GSP-covered imports into the EU represent more than 75% in value of its total GSP-covered imports);
- and with a low level of imports into the EU (its GSP-covered imports into the EU represent less than 6,5% in value of the EU’s total GSP-covered imports from all GSP beneficiaries).
See Commission Delegated Regulation (EU) No 155/2013 of 18 December 2012 establishing rules related to the procedure for granting the special incentive arrangement for sustainable development and good governance under Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences, OJ L48/5, 21.2.2013; Commission Delegated Regulation (EU) 2015/602 of 5 February 2015 amending Regulation (EU) No 978/2012 of the European Parliament and the Council as regards the vulnerability threshold defined in point 1(b) of Annex VII to that Regulation, OJ L100/8, 17.4.2015.
145.
Ebert (2009), at 9.
146.
To be eligible all “vulnerable” developing countries must have ‘ratified and effectively implemented’ 16 human rights conventions, including the 8 fundamental ILO Conventions, and at least 7 (out of 11) conventions on environment and governance; for a list of the 27 core conventions, see Annex VIII of Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008, OJ L303/1, 31.10.2012, p. 1. For further information visit: http://trade.ec.europa.eu/tradehelp/gsp, accessed on 14 June 2020.
147.
The eight ILO Conventions are: (i) freedom of association and the right to collective bargaining (Conventions 87 and 98); (ii) the elimination of all forms of forced or compulsory labour (Conventions 29 and 105); (iii) the effective abolition of child labour (Conventions 138 and 182); and (iv) the elimination of discrimination in respect of employment and occupation (Conventions 100 and 111).
148.
Marceau, above n 44, p. 567.
149.
Chapter 93; the Harmonized Commodity Description and Coding System, generally referred to as the “Harmonised System” is a multipurpose international product nomenclature developed by the WCO.
150.
Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000, OJ L317, 15/12/2000, p. 3.
151.
Regulation (EU) No. 978/2012 of the European Parliament and of Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 OJ [2012] L303/1, 31.10.2012.
152.
The case of Bangladesh, discussed in Sect. 5.3.1.2, is illustrative of this underlying difference in approach between the EU and the US. The latter decided that after the Rana Plaza tragedy, Bangladesh had made insufficient progress on factory safety reform to justify a reinstatement of its preferential status under the GSP programme. Hence in June 2013 the US suspended GSP status for Bangladesh. In the EU context, Bangladesh continues to be a beneficiary of the Everything But Arms (EBA) arrangement and generally the EU finds that there has been some progress resulting from the Bangladesh Sustainability Compact.
153.
For detailed analysis, see Jones (2015).
154.
US Public Law 93-617, 88 Stat. 1978, enacted January 3, 1975; 19 U.S.C Ch. 12.
155.
For detailed analysis, see Addo, above no. 35, pp. 154–156.
156.
The US GSP programme has been extended until 31 December 2017. The inclusion of conditional labour provisions into the US’ GSP dates back to 1984 and has not undergone fundamental reforms since then.
157.
The US Government, Proclamation 9188 of 3 October 2014, ‘To Modify the List of Beneficiary Developing Countries Under the Trade Act of 1974’, 79 Federal Register 60945, October 8, 2014.
158.
A labour rights clause in the GSP was adopted by the US Congress and signed by the US President Ronald Reagan on 30th of October 1984, taking effect in the GSP Renewal Act of 1984, see US GSP Renewal Act of 1984. Pub. L. No. 98-573, 98 Stat. 3019 (1984).
159.
19 U.S.C.A. § 2462(b)(2)(G).
160.
Greven (2005).
161.
Compa and Vogt (2001), at 203–204.
162.
Siroën (2013a), at 94.
163.
Hepple, above no. 31, 94.
164.
Ibid. 95.
165.
E.g. such as in the case of Bangladesh, above, no. 141 or Russia, discussed in this section. Both countries have been suspended from the US GSP scheme.
166.
As the analysis will go on to show foreign policy reasons can also underlie benefits withdrawal decisions in the EU GSP scheme.
167.
Bartels, above no 144, at 878.
168.
Valette (2007).
169.
European Commission, Proposal for a Council Regulation applying a scheme of generalized tariff preferences COM(2004) 699.
170.
Novitz (2005), at p. 214.
171.
Committee of Experts on the Application of Conventions and Recommendations (hereafter CEACR), Individual Observation Concerning Convention Nr. 87 (Germany) 1991, CEACR Individual Observation Concerning Convention Nr. 87 (Germany) 2003. CEACR Individual Observation Concerning Convention Nr. 87 (Germany) 2005 and 2006.
172.
E.g. Committee of Experts on the Application of Conventions and Recommendations (hereafter CEACR), Individual Observation Concerning Convention Nr. 87 (UK) in 2003 and 2007 and Concerning Convention Nr. 98 in 2002. In addition, in 2016 (while the TTIP negotiations were taking place), the ILO Committee of Experts held that the British government that proposed trade union legislation would if enacted violate ILO Convention No. 87, see CEACR, Observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87), 105th ILC sess (2016, adopted 2015) (‘United Kingdom’). The legislation was adopted with the Trade Union Act 2016 (c.15) and CEACR has made other observations in relation to specific aspects concerning the right to strike, see CEACR, Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 106th Session, 2017, ILC.106/III(1A), available at: https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_543646.pdf, accessed 14 June 2020. A study conducted on compliance with ILO Conventions showed that 22 out of 28 EU Member States are in breach of the freedom of association ILO Conventions, see Ewing and Hendy (2015).
173.
Ebert, above note 146, 12–13.
174.
See above infra Sect. 5.2.2 of this chapter.
175.
C-438/05 International Transport Workers’ Federation v Viking Line ABP ECLI:EU:C:2007:772 and C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet ECLI:EU:C:2007:772; for critical commentary of these judgments and the implications for Member States’ domestic labour market regulation, see Freedland and Prassl (2016).
176.
CEACR, Observation (CEACR)—adopted 2012, published 102nd ILC session (2013) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)—Sweden (Ratification: 1949).
177.
E.g. CEACR: Examination of individual case concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise, 1948 Colombia (ratification: 1976), published: 2005, Conclusions; Case No. 1787 (Colombia), Report No. 343 (Vol. LXXXVIX, 2006, Series B, No. 3), para. 422; United Nations High Commissioner for Human Rights (UNCHR) (2011), ‘Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia’ A/HRC/16/22 of 3 February 2011, available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-21-Add3_en.pdf, accessed on 20 March 2020.
178.
CEACR, Individual Observation concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Colombia (ratification: 1976), published: 2006.
179.
Article 15 of Regulation (EU) No. 978/2012.
180.
Article 19 of Regulation (EU) No. 978/2012.
181.
Yap (2013), at 289.
182.
European Commission, Commission Delegated Regulation (EU) No 1083/2013 of 28 August 2013 establishing rules related to the procedure for temporary withdrawal of tariff preferences and adoption of general safeguard measures under Regulation (EU) No 978/2012 of the European Parliament and the Council applying a scheme of generalized tariff preferences.
183.
Council Regulation (EC) No 552/97 temporarily withdrawing access to the generalized tariff preferences from Myanmar/Burma, OJ L 85, 27.3.1997, p. 8.
184.
Regulation (EU) No 607/2013 of the European Parliament and of the Council of 12 June 2013 repealing Council Regulation (EC) No 552/97 temporarily withdrawing access to the generalized tariff preferences from Myanmar/Burma, OJ L 181/13.
185.
For further information see, https://www.ilo.org/yangon/press/WCMS_615269/lang--en/index.htm; https://www.ilo.org/yangon/speeches/WCMS_319811/lang--en/index.htm, accessed on 23 March 2020.
186.
United Nations General Assembly, Report of the Special Rapporteur on the situation of human rights in Myanmar, A/73/332, 20 August 2018, available at: http://undocs.org/A/73/332, accessed on 23 March 2020.
187.
Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, A/HRC/31/71, 1 March 2016, available at: https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session37/Documents/A-HRC-37-70.docx, accessed on 23 March 2020.
188.
UN HRC, Report of the independent international fact-finding mission on Myanmar, Forty-second session, 16 September 2019, A/HRC/42/50; UN News, ‘Genocide threat for Myanmar’s Rohingya greater than ever, investigators warn Human Rights Council’, 16 September 2019, available at: https://news.un.org/en/story/2019/09/1046442, accessed on 23 March 2020.
189.
European Commission, Mid-Term Evaluation of the EU’s Generalised System of Trade Preferences (GSP), Final Interim Report, prepared by DEVELOPMENT Solutions for the Directorate-General for Trade Directorate D—Sustainable Development; Economic Partnership Agreements—Africa Caribbean and Pacific; Agri-food and Fisheries Unit D1—Trade and Sustainable Development, Generalised system of Preferences, Brussels, Belgium, 21 September 2017, p. 237, available at: https://trade.ec.europa.eu/doclib/docs/2018/october/tradoc_157434.pdf, accessed on 23 March 2020.
190.
In October 2018 the EU has given notice of its intention to send an emergency, high-level EU mission to the country to assess the situation on the ground. It was further stated that this high-level mission would be within the framework of a potential withdrawal of Myanmar from the EBA arrangement and there would be a clear possibility that a withdrawal could be the outcome, see Michael O’Kane, ‘EU imposes trade sanctions on Cambodia and notifies Myanmar of potential similar action’, https://europeansanctions.com/category/burmamyanmar/, accessed on 23 March 2020.
191.
Ibid.
192.
Ark et al. (2016).
193.
International Federation for Human Rights (FIDH) (2017), p. 2.
194.
Portela and Orbie (2014), at 68.
195.
European Commission, Proposal for a council regulation temporarily withdrawing access to the generalised tariff preferences from the Republic of Belarus COM (2006)0438 final, p. 37.
196.
Ibid., at p. 39.
197.
Council Regulation (EC) No 1933/2006 of 21 December 2006 temporarily withdrawing access to the generalized tariff preferences from the Republic of Belarus, OJ L 4056/2006, p. 35.
198.
Discussed further below, see Sect. 5.3.1.3.
199.
Portela (2018), p. 5.
200.
Ibid.
201.
Cuyvers and Zhou (2011).
202.
Ibid.
203.
For detailed analysis and discussion, see Portela and Orbie, above no. 195, 67–68 and 70–72.
204.
Ibid., 71–72.
205.
Ibid., 73; for further discussion, see Kryvoi (2008).
206.
For further information visit: http://ec.europa.eu/trade/policy/countries-and-regions/countries/bangladesh/index_en.htm, accessed on 23 March 2020.
207.
Id. A large amount of workers are employed in the RMG sector of whom mostly women; see further: http://www.worldbank.org/en/news/feature/2017/02/07/in-bangladesh-empowering-and-employing-women-in-the-garments-sector, accessed on 20 March 2020.
208.
On 24 April 2013, the five-story Rana Plaza building collapsed killing more than 1000 people and seriously injuring more than 2000 people, see https://ranaplaza-arrangement.org, accessed on 20 March 2020. Despite large cracks were discovered the day before and the building evacuation the day before, factory owners threatened to withhold wages of those garment workers who would not return for work. On this point Phil Robertson, then Asia Deputy Director of Human Rights Watch (HRW), commented that had the garment workers more of a voice, they might have been able to resist managers who ordered them to work in the doomed building a day after large cracks appeared in it’, see Human Rights Watch, ‘Bangladesh: Garment Worker’s Union Rights Bleak’ (21 April 2016) https://www.hrw.org/news/2016/04/21/bangladesh-garment-workers-union-rights-bleak, accessed on 23 march 2020.
209.
For a detailed study of labour standards in Bangladesh, see Hossain et al. (2018). The authors argue that while trade arrangements such as the EU GSP scheme have made significant contributions to the economic upgrading of the country, but have failed to upgrade its social development.
210.
Human Rights Watch (2016).
211.
See further information at: http://www.dhakatribune.com/tribune-supplements/business-tribune/2017/04/23/garment-workers-rights-still-far-cry/, accessed on 20 March 2020.
212.
European Commission (2017c).
213.
Ark et al., above no. 193.
214.
Ibid.
215.
The 2006 Bangladesh Labour Act, which was amended in 2013 and its 2015 implementing rules still fall short of ILO standards. The law continues to be prejudiced against unions by making founding, registering and operating a union very difficult. While there was an initial increase in trade union registrations after the Compact was adopted, the 2013 legislation gives the government great discretion to refuse to register trade unions and many unions have since been busted or are now inactive.
216.
Bangladeshi authorities arrested or detained at least 34 union leaders and worker rights advocates, see further information at: https://www.hrw.org/news/2017/02/15/bangladesh-stop-persecuting-unions-garment-workers, accessed on 20 March 2020.
217.
Visit: https://www.solidaritycenter.org/bangladesh-living-wage-strike-sparks-government-crackdown/, accessed on 20 March 2020.
218.
European Commission DG Trade (2013).
219.
Ahmad (2015).
220.
European Commission, ‘Staying Engaged: The Sustainability Compact for the Bangladesh Ready Made Garment Sector’, available at: http://trade.ec.europa.eu/doclib/docs/2018/june/tradoc_157065.27’’%20x%2011.69’’_%2019.06.2018_Te….pdf, accessed on 23 March 2020.
221.
The US and Canada joined as partners in 2013 and 2016, respectively; the Compact is built on short- and long-term commitments related to three main pillars: (1) respect for labour rights; (2) the structural integrity of buildings and occupational safety and (3) responsible business conduct. For further analysis, see Kenner and Peake (2017) and Vogt (2017).
222.
This group is comprised of three secretaries of Labour, Commerce and Foreign Affairs of the Government of Bangladesh, as well as the ambassadors of the EU, the US, Canada, plus two other Member States, together with the ILO.
223.
Further information available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_488339.pdf, accessed on 23 March 2020.
224.
Further information available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_489124.pdf, accessed on 23 March 2020.
225.
“Report of the Committee of Experts on the Application of Conventions and Recommendations”, 2018, available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_617065.pdf, accessed on 23 March 2020.
226.
Ibid.
227.
Ibid.
228.
European Commission and European External Action Service, Letter sent by Trade Director of the European Commission Sandra Gallina, Director of Labour Mobility at the Directorate-General for Employment, Social Affairs and Inclusion of the European Commission Jordi Curell and Managing director of Human Rights, Global and Multilateral Issues at the European External Action Service Lotte Knudsen, Brussels, Belgium, 31 May 2017.
229.
ITUC-CCC, Complaint to the European Ombudsman. Alleging maladministration by the European Commission in its failure to investigate the status of Bangladesh under the GSP, Brussels, Belgium, 6 June 2018, available at: https://www.ituc-csi.org/IMG/pdf/bangladesh_ombudsman_complaint_nal_2018_06_06_clean.pdf. The present author was part of the HEC-NYU EU Public Interest Clinic team that prepared the complaint filed to the European Ombudsman.
230.
Article 21 TEU.
231.
Vogt, above no. 222.
232.
Ibid.
233.
ITUC-CCC, above no. 230.
234.
Under the Uzbekistan Partnership and Cooperation Agreement technical meetings were suspended in response to the Andjan massacre. However, in the Council Common Position there was no reference to the human rights clause, see Council Common Position 2005/792/CFSP concerning restrictive measures against Uzbekistan [2005] OJ L 299/72.
235.
Bartels (2013).
236.
Sykes (2006), at p. 69.
237.
For a discussion of these issues, see Orbie and De Ville (2010).
238.
European Commission, Decision 2008/316/EC of 31 March 2008 providing for the initiation of an investigation pursuant to Article 18(2) of Council Regulation (EC) No 980/2005 with respect to the protection of the freedom of association and the right to organize in El Salvador OJ [2008] L 108/29, 18 April 2008.
239.
European Commission, Report of the Investigation pursuant to Article 18(2) of the Council Regulation (EC) No 980/2005 with respect to the protection of the freedom of association and the right to organize in El Salvador, C(2009) 7934 (2009).
240.
European Commission, Implementing Decision 2012/161/EU of 19 March 2012 providing for the initiation of an investigation pursuant to Article 17(2) of Council Regulation (EC) No 732/2008 with respect to the effective implementation of the United Nations Single Convention on Narcotic Drugs in Bolivia OJ [2012] L 80, 20.3.2012, p. 30.
241.
Portela, above no. 200, p. 5.
242.
European Commission, Report on the findings of investigation with respect to the effective implementation of certain human rights conventions in Sri Lanka, Brussels, Belgium, 19 October 2009, C(2009) 7999, available at: https://reliefweb.int/sites/reliefweb.int/files/resources/9501F5EFE0C4F6C449257655000EECA5-Full_Report.pdf, accessed on 14 June 2020.
243.
European Commission, Implementing Regulation (EU) No 143/2010 of 15 February 2010 temporarily withdrawing the special incentive arrangement for sustainable development and good governance provided under the Regulation (EC) No 732/2008 with respect to the Democratic Socialist Republic of Sri Lanka, OJ [2010] L 45/2010, 22.7.2010, p.1.
244.
Ibid., Article 2.
245.
European Commission, Press release, ‘EU regrets silence of Sri Lanka regarding preferential import regime’ of 5 July 2010, IP/10/888, available at https://ec.europa.eu/commission/presscorner/detail/en/IP_10_888, accessed on 14 June 2020.
246.
Democracy Reporting International, ‘GSP+ and Sri Lanka’ August 2017, available at: http://democracy-reporting.org/wp-content/uploads/2018/04/GSP-English_August-2017.pdf, p. 10, accessed on 20 March 2020.
247.
European Commission, above no. 171, p. 241.
248.
Commission Delegated Regulation (EU) 2017/836 of 11 January 2017 amending Annex III to Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences, OJ 18.5.2017 L 125/1.
249.
European Commission, ‘EU Grants Sri Lanka Improved Access to Its Market as Incentive for Reform’, Press Release IP/17/1363, Brussels, Belgium, May 17, 2017, available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1663, accessed on 20 March 2020.
250.
See above, infra Sect. 5.3.1.
251.
Velluti (2016a), at pp. 358–361.
252.
European Parliament, Report on the external dimension of social policy, promoting labour and social standards and European corporate social responsibility (2010/2205(INI)), Committee on Employment and Social Affairs, A7-0172/2011, of 20 April 2011.
253.
European Commission, Joint Staff Working Document on the EU Special Incentive Arrangement for Sustainable Development and Good Governance (GSP+) covering the period 2014–2015, Brussels, 28.01.2016, SWD (2016) 8 final; European Commission, GSP + Report on Sustainability, Human Rights and Good Governance. Questions and Answers’, Brussels, Belgium, 28.01.2016, available at: trade.ec.europa.eu/doclib/docs/2016/january/tradoc_154179.pdf, accessed on 23 March 2020.
254.
CARIS, ‘Mid-term Evaluation of the EU’s Generalized System of Preferences’, Report commissioned by the EC, Brighton: Centre for the Analysis of Regional Integration at Sussex, University of Sussex, 2010, available at: http://www.sussex.ac.uk/caris/projects, and the final report is available at: http://trade.ec.europa.eu/doclib/docs/2010/may/tradoc_146196.pdf, accessed on 23 March 2020.
255.
Portela, above no. 200, p. 7.
256.
Ibid., p. 8.
257.
Ibid., p. 7.
258.
Ibid., p. 7.
259.
Ibid., p. 7.
260.
CARIS, above no. 255.
261.
Ibid.
262.
Stevens and Kennan (2011).
263.
I am grateful to Lorand Bartels for raising this-point to me.
264.
Siroën (2013b).
265.
Ibid.
266.
Hepple, above no 31, pp. 13–23.
267.
Regulation (EU) No. 978/2012 of the European Parliament and of Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 OJ [2012] L303/1, 31.10.2012.
268.
This is defined as “income graduation”, see, Stevens et al. (2011).
269.
Ibid., pp. 6–19.
270.
Article 4 of Regulation (EU) No. 978/2012.
271.
The list of beneficiaries has been modified several times to reflect the exit from and the entry of countries newly meeting the eligibility conditions for each of the three types of arrangements since the first modifications effected with the 2012 reform, which at the time of writing is as follows: 30 GSP, 13 GSP+ and 49 EBA beneficiaries; European Commission, Report from the Commission to the European Parliament and the Council, Report on the Generalised Scheme of Preferences Covering the Period 2014–2015, COM(2016) 29 final, Brussels, 28.1.2016.
272.
Siles-Brügge (2014), at 53.
273.
Ibid.
274.
Vogt, above no. 222.
275.
For an examination of the legal and political problems that this gave rise to, see Orbie et al. (2014), at 163.
276.
Further information is available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50012:0::NO:50012:P50012_COMPLAINT_PROCEDURE_ID,P50012_LANG_CODE:3088000,en:NO and http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_419599.pdf, accessed 4 January 2016.
277.
Further information is available at https://ustr.gov/issue-areas/labor/bilateral-and-regional-trade-agreements/guatemala-submission-under-cafta-dr, accessed 14 June 2020.
278.
Office of the United States Trade representative, ‘Standing Up for Workers: Ensuring that the Benefits of Trade are Broadly-Shared’, 18 September 2014, available at: https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2014/September/Standing-Up-for-Workers-Ensuring-that-the-Benefits-of-Trade-are-Broadly-Shared, accessed on 23 March 2020.
279.
For further critical analysis, see Goldhammer and Gottwald (2014) and Compa et al. (2018).
280.
Dominican Republic—Central America—United States Free Trade Agreement Arbitral Panel Established Pursuant to Chapter 20, Final Report of the Panel in the Matter of Guatemala—Issues Relating to the Obligations Under Article 16.2.1(a) of the CAFTA-DR, 14 June 2017, available at: https://www.trade.gov/industry/tas/Guatemala%20%20%E2%80%93%20Obligations%20Under%20Article%2016-2-1(a)%20of%20the%20CAFTA-DR%20%20June%2014%202017.pdf, accessed on 23 March 2020.
281.
Compa, Gottwald and Vogt, above no. 280, p. 5.
282.
Ibid.
283.
Compa, Gottwald and Vogt, above no. 280, p. 6.
284.
Ibid., p. 8.
285.
Chapter Sixteen, Article 16.2 ‘Enforcement of Labour Laws’, para. 1(a) provides that: ‘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.’
286.
CAFTA-DR Arbitral Panel, above no. 281, paras. 165, 190–191 and 196.
287.
Those cases spanned several years and together involved seventy-four workers. However, the Panel found that these instances did not constitute a course of inaction that was in a manner affecting trade, CAFTA-DR Arbitral Panel, above no. 281, para. 594.
288.
CAFTA-DR Arbitral Panel, above no. 281, para. 505.
289.
CAFTA-DR Arbitral Panel, above no. 281, para. 594.
290.
In this regard, see Compa, Gottwald and Vogt, above no. 280, pp. 29-31; the authors put forward specific recommendations to be applied to the negotiation or renegotiation of labour provisions in future or current (in the case of renegotiation) trade agreements to ensure the effective enforcement of the labour provisions contained therein.
291.
European Commission, above no. 190, p. 238.
292.
Article 14(1) of Regulation (EU) No. 978/2012.
293.
European Commission, Joint Staff Working Document `The EU Special Incentive Arrangement for Sustainable Development and Good Governance (`GSP + ’) covering the period 2014–2015. Accompanying the document Report from the Commission to the European Parliament and the Council Report on the Generalised Scheme of Preferences during the period 2014–2015 (COM(2016) 29 final), Brussels, 28.1.2016 (SWD(2016) 8 final).
294.
Van den Putte et al. (2015).
295.
European Commission, Report from the Commission to the European Parliament and the Council, Report on the Generalised Scheme of Preferences Covering the Period 2014–2015, COM(2016) 29 final, Brussels, 28.1.2016.
296.
As part of its on-going collaboration and cooperation with the ILO, the European Commission has provided a grant to the ILO for a 2-year pilot-project Sustaining GSP-Plus Status by Strengthened National Capacities to Improve ILS Compliance and Reporting to strengthen the capacity of public administrations to apply the eight Fundamental ILO Conventions. The project was launched on 1 October 2015 and consists of ILO technical assistance, workshops, trainings, as well as awareness-raising activities, see ILO (2013b).
297.
European Commission, above no. 190, p. 235.
298.
As referred under Article 9, see Article 15 of Regulation (EU) No. 978/2012, supra note 96.
299.
European Commission, above no. 190, p. 234.
300.
Ibid.
301.
Ibid.
302.
Ibid., pp. 238–239.
303.
E.g. for an interesting comparative analysis of the differences between the legal environments of regional trade agreements, see Duina (2006).
304.
This expression is taken from Urata (2002), at 21.
305.
Addo, above no. 35, p. 176.
306.
This principle is known as the most-favoured-nation (MFN) treatment; see GATT Article I, GATS Article II and Agreement on TRIPS Article 4.
307.
Addo, above no. 35, pp. 176–177.
308.
Ibid.
309.
The North American Free Trade Agreement (NAFTA), 32 I.L.M. 289 and 605 (1993); see also http://www.naftanow.org/, accessed on 23 March 2020.
310.
The North American Agreement on Labour Cooperation (NAALC), 32 I.L.M. 1499 (1993).
311.
International Labour Organisation (ILO) (2017); for information regarding the regional patterns of labour provisions in trade agreements as well as their normative content and scope, see pp. 12–14.
312.
Addo, above no. 35, p. 217; for critical commentary, see Hepple, above no. 31, pp. 108–114 and 118–121.
313.
Article 49 and Annex 1 of NAALC contain the eleven labour principles that the parties have to adhere to: 1. Freedom of association and protection of the right to organize; 2. The right to bargain; 3. The right to strike; 4. The prohibition of forced labour; 5. The labour protection for children and young persons; 6. Minimum employment standards such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements; 7. Elimination of employment discrimination on the basis of grounds such as race, religion, age, sex, or other grounds as determined by each Party’s domestic laws; 8. Equal pay for men and women; 9. Prevention of occupational injuries and illnesses; 10. Compensation in cases of occupational injuries and illnesses; 11. Protection of migrant workers.
These principles go far beyond the CLS embodied in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. The NAALC not only defines labour laws as laws and regulations that are directly related to the eleven rights but also requires that these rights provide for “high labour standards” to be harmonized among the three parties and that they should be improved over time (see Article 2 of NAALC; see also Article 3 of NAALC subject to Article 42 of NAALC). The side agreement allows any person with a recognized interest under the law to submit complaints or petitions to any of the three parties in relation to occupational safety and health, child labour, minimum wage or technical labour standards (see Articles 3(2) and 4 of NAALC as well as Article 27 of NAALC; the more controversial areas of freedom of association, right to bargain collectively and forced labour are excluded).
314.
Teague, above no. 34, at 338–345; for a similar position in relation to the renegotiated NAFTA, see also the US Labour Advisory Committee for Trade Negotiations and trade Policy (LAC), Report on the Impacts of the Renegotiated North American Free Trade Agreement, 27 September 2018, pp. 7, 19–22 and Appendix, Section 10, available at: https://ustr.gov/sites/default/files/files/agreements/FTA/AdvisoryCommitteeReports/Labor%20Advisory%20Committee%20on%20Trade%20Negotiations%20and%20Trade%20Policy%20%28LAC%29.pdf, accessed on 23 March 2020.
315.
Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area, 41 I.L.M. 63 (2002).
316.
The labour provisions of the USJFTA are in line with both the ILO’s CLS and with the US 1974 Trade Act (Trade Act of 1974, 19 U.S.C. §§ 2111-2462 (Suppl. 2 1976), as amended).
317.
Key provisions are found in Articles 6 and 17 of the 2001 USJFTA; as illustrated by the language used in Article 6 of the agreement, namely the words “shall strive to” or “exercise discretion”, the obligations entered into are more one of effort rather than result.
318.
Article 17(2) (b) of the 2001 USJFTA.
319.
Article 6(1) of the 2001 USJFTA.
320.
Sibbel (2010).
321.
It should be noted that the process of reform followed a report published in May 2006 by the Jordanian National Labor Committee (NLC—now Institute for Global Labour and Human Rights) alleging serious worker rights violations in Jordan’s garment sector, including trafficking, forced labour, and non-payment of wages. The work force in Jordan’s garment sector is made up mostly of migrant workers; see, Kernaghan (2006).
322.
Kernaghan, above no. 322, at 4–5.
323.
These criteria covered a range of aspects such as working hours, workers’ legal status and wages and other issues such as, for example, dormitory conditions.
324.
The ILO Better Work Programme now operates in eight countries, namely, Bangladesh, Cambodia, Ethiopia, Haiti, Indonesia, Jordan, Nicaragua and Vietnam. The programme has started to be piloted in Egypt; further information can be found at: https://betterwork.org/, accessed 14 June 2020.
325.
These activities covered issues such as child labour, forced labour, trafficking, wages, working hours, occupational safety and health, and dormitory conditions; for an assessment of the programme’s impact, see the Better Work Jordan Annual Report 2018: An Industry and Compliance Review, available at: https://betterwork.org/blog/portfolio/better-work-jordan-annual-report-2018-an-industry-and-compliance-review/, accessed 14 June 2020.
326.
Full text access to European FTAs and their labour provisions can be found at http://ilo.org/global/standards/information-resources-and-publications/free-trade-agreements-and-labour-rights/WCMS_115822/lang--en/index.htm#P4_728, accessed 14 June 2020.
327.
For example, the Preambles of the 1997 EU’s Cooperation Agreements with Cambodia and Laos, Yemen and the Former Yugoslav Republic of Macedonia refer to the need to complement economic with social development as well as the respect for basic social rights. The 1999 EU-South Africa Trade, Development and Cooperation Agreement with South Africa and the 2005 EU-Algeria Association Agreement also refer to the need to respect fundamental social rights and provide for dialogue and cooperation in social matters.
328.
The regional group comprises 15 Caribbean countries: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St Lucia, St Vincent and the Grenadines, St Kitts and Nevis, Suriname, Trinidad and Tobago; Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part [2008] OJ L289/3.
329.
European External Action Service (EEAS) (2016); Van den Putte and Orbie, above no 14, at 265.
330.
Van den Putte and Velluti, above no. 3, at pp. 232–233; see also Raess and Sari (2018).
331.
E.g. Article 13.4 subpara. 3 and Article 13.7 subpara. 2 of the 2011 EU-Korea FTA.
332.
E.g. Article 13.7 subpara. 2 of the 2011 EU-Korea FTA.
333.
E.g. Article 13.15 of the 2011 EU-Korea FTA.
334.
Office for the Economic and Social Council (ECOSOC) Support and Coordination, Department of Economic and Social Affairs of the United Nations, ‘Full and Productive Employment and Decent Work Dialogues at the Economic and Social Council’ United Nations, New York, 2006, available at: https://www.un.org/en/ecosoc/docs/pdfs/ecosoc_book_2006.pdf, accessed 14 June 2020; see Article 13(4) of the 2011 EU-Korea FTA.
335.
Article 13(4) of the 2011 EU-Korea FTA.
336.
Van den Putte and Velluti, above no. 3, at p. 234. For further analysis on the differences between the EU and the US approaches, see Oehri (2015); Melo Araujo, above no. 79, at 239–245; De Ville et al. (2016a, b), at 290–292; Vogt (2015b); for a mapping of the key differences between the EU and the US, see Tham and Ewing (2016), Tables 4 and 5 at 14–16.
337.
The dispute settlement mechanism in US trade agreements allows the suspension of benefits against a party if it can be shown that non-enforcement resulted from a sustained or recurring course of action or inaction and has occurred in a manner affecting trade or investment between the parties; e.g. Articles 17(4)(5) and 20(6) of the 2004 US-Singapore Free trade Agreement (USSFTA), January 2004, full text is available at: https://ustr.gov/sites/default/files/uploads/agreements/fta/singapore/asset_upload_file708_4036.pdf, accessed on 23 March 2020.
338.
Conversely, EU trade agreements often extend beyond CLS by also requiring parties to maintain laws, regulations and practices in accordance with the ILO Decent Work Agenda; e.g. Article 13(1) of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea OJ L 127; Article 191(2) of the Economic Partnership between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part OJ L289/I/3, 30.10.2008. Article 23(3) of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the One Part, and the European Union and its Member States of the Other Part, Consolidate Text published 26 September 2014, available at http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf, accessed on 20 March 2020.
339.
Detailed information about the Conventions ratified by the US can be found at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102871, accessed on 20 March 2020.
340.
ILO Convention C105 on the Abolition of Forced Labour, 1957 (No. 105), 25 September 1991 and ILO Convention C182 on the Worst Forms of Child Labour, 1999 (No. 182), 2 December 1999.
341.
The CPA was concluded for a 20-year period from 2000 to 2020 between the EU and 79 ACP countries. Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000, OJ L317, 15/12/2000, p. 3. It has been revised twice: in Luxembourg on 25 June 2005 (OJ [2005] L 209, 11/08/2005, p. 27) and in Ouagadougou on 22 June 2010 (OJ [2010] L 287, 04/11/2010, p. 3).
342.
Alston, above no. 65, at 511.
343.
Kenner, above no. 36, at p. 316.
344.
Ibid.
345.
Kenner, above no. 36, at p. 315.
346.
Ibid.
347.
Cfr. with the EU-Central America Association Agreement, which provides that an affected party can request that an urgent meeting be called to bring the Parties together within fifteen days for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties, see Article 355(5).
348.
E.g. The coup d’état in Guinea Bissau in 2003, the coup d’état in Central African Republic in 2003 and flawed elections in Togo in 2003, for further analysis, see Mbangu (2005).
349.
Kwa et al. (2014) and Gathii (2013).
350.
Bartels, above no 236, 306.
351.
Durán (2013).
352.
For further analysis, see Bartels, above no. 58, at p. 342.
353.
Bartels, above no. 236, at 307–309.
354.
The first of the EU’s agreements to make reference to the principle of sustainable development was the 1993 EU-Hungary Europe Agreement, Bartels, above no. 236, 306.
355.
Article 21(2)d and (3) TEU.
356.
Free Trade Agreement between the European Union and its Member States of the one part, and the Republic of Korea of the other part (EU-Korea FTA) OJ [2011] L127/6, 14 May 2011, p. 6. It entered into force in July 2011 and it is the EU’s first trade agreement with an Asian country. It is also the first completed agreement in a new generation of FTAs launched by the EU in 2007 as part of its strategy to create “deep and comprehensive” free trade agreements (DCFTA) with selective partners following the Doha round stand-still at the WTO. On this point see, Hoffmeister (2014).
357.
Agreement establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other (EU-CAAA) OJ [2012] L346/3, 15 December 2012, p. 3.
358.
Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part OJ [2012] L354/3, 21 December 2012, p. 3.
359.
European Parliament Resolution of 13 June 2012 on the EU Trade Agreement with Colombia and Peru, Doc 2012/2628 (RSP), 13.6.2012.
360.
Bendini and Delaunay (2011).
361.
Ibid.
362.
E.g. Article 276.
363.
Bartels, above no. 236, 301. Cfr. With Article 8(1) of the EU-Colombia and Peru Agreement which makes explicit reference to all authorities and government levels of the Parties.
364.
It is the first bilateral agreement concluded by the EU with an Association of Southeast Asian Nations (ASEAN) country and it has provided the blueprint for future bilateral agreements with other ASEAN countries; Free Trade Agreement between the European Union and Singapore, 17 October 2014, Authentic text as of May 2015 available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=961, accessed on 20 March 2020. Member states endorsed the trade agreement on 8 November 2019. It entered into force on 21 November 2019. The investment protection agreement is awaiting ratification by all member states.
365.
The regional group comprises 15 Caribbean countries: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St Lucia, St Vincent and the Grenadines, St Kitts and Nevis, Suriname, Trinidad and Tobago; Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part (OJ [2008] L289, 30/10/2008, p. 3).
366.
For commentary on the investment provisions of the 2008 CARIFORUM-EU EPA, see Cardwell and French (2011).
367.
2008 CARIFORUM-EU EPA, Articles 191–196.
368.
2008 CARIFORUM-EU EPA, Article 229(1).
369.
2008 CARIFORUM-EU EPA, Article 195.
370.
Ibid.
371.
See G. M. Durán, above no. 352, 124–145. For a legal critique of the 2011 EU-Korea FTA, see Gruni (2017).
372.
Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 4 October 2006 ‘Global Europe: Competing in the world’ COM(2006) 567 final.
373.
South Korea became the 152nd country to join the ILO in 1991, but it has only ratified four of what the ILO General assembly has identified as its eight core conventions. The still unratified conventions are No. 87 and No. 98, which concern the freedom of association, and No. 29 and No. 105, which concern the abolition of compulsory labour; in addition, South Korea has been heavily criticised by the ILO supervisory bodies on freedom of association, e.g. ILO, Committee on Freedom of Association, Case No 2602 (Republic of Korea) (Interim Report No 359, March 2011).
When South Korea joined the OECD in 1996 and also when it became a member of the UN Human Rights Council (UNHRC) in 2006, the government had pledged to ratify these conventions, but so far it hasn’t followed through on that promise. Among the 35 member states of the OECD, South Korea and the US are the only countries that haven’t ratified conventions No. 87 and No. 98. Public servants are being discriminated against and prevented from joining or establishing trade unions. The case of the Korean Teachers and Education Workers Union (KTU) is illustrative. In 2018 the KTU’s application for establishing a trade union was rejected because terminated workers are enrolled as members. Hence, not all fundamental labour rights that the ILO core conventions protect are being guaranteed in South Korea; e.g. the International Trade Union Confederation’s (ITUC) condemnation in 2019 of South Korea’s delay in bringing its own labour legislation in line with international labour standards, available at: https://www.ituc-csi.org/fundamental-labour-rights-under; accessed on 14 June 2020.
374.
These meetings take place in Seoul (South Korea) and Brussels (Belgium) on an alternate basis.
375.
See G. M. Durán, above no. 344, at 135; the EU-Japan Economic Partnership Agreement, which entered into force on 1 February 2019, includes all the key elements of the EU approach on sustainable development and is in line with most EU trade agreements adopted since the 2011 EU-Korea FTA; see Agreement between the European Union and Japan for an Economic Partnership, OJ L 330/3 27.12.2018, Chapter 16.
376.
Van den Putte and Velluti, above no. 3, at p. 237.
377.
Ibid.
378.
European Commission (2019).
379.
European Commission (2018b).
380.
Free Trade Agreement between the European Union and the Socialist Republic of Vietnam, Agreed Text as of January 2016, available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437, accessed on 14 June 2020; see also European Commission, ‘Human Rights and Sustainable Development in the EU-Vietnam Relations with specific regard to the EU-Vietnam Free Trade Agreement’, Commission Staff Working Document, Brussels, 26.1.2016, SWD(2016) 21 final; the EU and Vietnam signed the agreement (comprising also an Investment Protection Agreement) on 30 June 2019.
For academic commentary see Hoang et al. (2014).
381.
E.g. Preamble, Articles X. 17 and 21 of the Chapter on Institutional, General and Final Provisions (CIGF), Ch. 17, 2016 EU-Vietnam FTA; Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States, of the one part, and the Socialist Republic of Viet Nam, of the other part of 27 June 2012, available at http://eur-lex.europa.eu/resource.html?uri=cellar:e9d99d61-6897-11e3-a7e4-01aa75ed71a1.0011.01/DOC_2&format=PDF.
382.
2012 EU-Vietnam PCA, Article 1(1) and (3).
383.
2016 EU-Vietnam FTA, Ch. 15.
384.
2016 EU-Vietnam FTA Article 3, Ch. 15.
385.
Ibid.
386.
Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States of the other part, Consolidate Text published 26 September 2014, available at http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf. The Agreement was signed in October 2016 and parts of the Agreement have been provisionally applied as of 21 September 2017, following the European Parliament’s approval on 15 February 2017; see Council Decision of 26 Oct. 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) Between Canada, of the one hand, and the European Union and its Member States, of the other (2016/0206 (NLE)).
387.
For a detailed analysis of the provisions of CETA, see Bartels (2017).
388.
The term ‘mega-regional trade agreements’ was adopted by the World Bank to refer to ‘regional agreements that have systemic, global impact. […] They are sufficiently large and ambitious to influence trade rules and trade flows beyond their areas of application; World Bank Group, ‘Global Economic Prospects, January 2016: Spillovers Amid Weak Growth’, Washington DC: World Bank, p. 221, available at: https://openknowledge.worldbank.org/handle/10986/23435, accessed on 20 March 2020.
389.
Ebert (2017), at 297.
390.
Canada has since ratified this convention (14 June 2017), see the ILO’s NORMLEX database, available at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:102582, accessed on 14 June 2020.
391.
Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) Between Canada and the European Union and its Member States, OJ 14.1.2017, L11/3.
392.
2014 EU-CETA, Chapter 22.
393.
2014 EU-CETA, Chapter 23.
394.
2014 EU-CETA, Chapter 24.
395.
E.g. 2014 EU-CETA, Articles 23.3 and 23.5 para. 2.
396.
2014 EU-CETA, Article 23.3, par. 1.
397.
Ebert, above no. 390, at 304.
398.
The inclusion of this provision is particularly significant given that at the time of signing the agreement Canada had only ratified six of the eight Fundamental Conventions (Conventions No. 29, No. 87, No. 100, No. 105, No. 111 and No. 182).
399.
ILO Declaration on Social Justice for a Fair Globalisation, adopted by the International Labour Conference at its Ninety-seventh Session, Geneva, Switzerland, 10 June 2008, available at: https://www.ilo.org/wcmsp5/groups/public/---dgreports/---cabinet/documents/genericdocument/wcms_371208.pdf, accessed on 20 March 2020.
400.
2014 EU-CETA, Article 23.3 para. 2.
401.
2014 EU-CETA, Article 23.5 and 23.6.
402.
2014 EU-CETA, Article 23.4, paras. 2 and 3.
403.
2014 EU-CETA, Article 23.7.
404.
2014 EU-CETA, Article 22.4.
405.
2014 EU-CETA, Article 22.5 and 23.8(4).
406.
2014 EU-CETA, Article 23.8(5).
407.
2014 EU-CETA, Article 23.9 and 23.10.
408.
2014 EU-CETA, Article 23.10(12).
409.
2014 EU-CETA, Article 23.11(1).
410.
Over 450 public interest groups from across Europe and Canada published an open letter, dated 28 November 2016, urging legislators to vote against CETA; see Corporate Europe Observatory, ‘European and Canadian Civil Society Groups Call for Rejection of CETA’, 28.11.2016, available at: https://corporateeurope.org/en/international-trade/2016/11/european-and-canadian-civil-society-groups-call-rejection-ceta, accessed on 14 June 2020. In August 2016 a group of German NGOs, namely Campact, Foodwatch and Mehr Demokratie, filed a complaint to the Constitutional Court arguing that certain elements of the agreement were unconstitutional and breached the rule of law under the German Constitution. The German Constitutional Court rejected the legal challenge on 13 October 2016; the text of the judgment is available here (in German): https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/10/rs20161013_2bvr136816.html, accessed on 14 June 2020.
411.
Opinion of the Committee on Employment and Social Affairs for the Committee on International Trade on the draft Council decision on the conclusion of the Comprehensive Economic and Trade Agreement (CETA) Between Canada, of the one part, and the European Union and its Member States, of the other part (10975/2016—C8-0438/2016—2016/0205(NLE)) of 8 Dec. 2016, 3.
412.
2014 EU-CETA, Chapter 19.
413.
Some exception clauses can be found in CETA’s Chapter on Procurement such as the one found in Article 19.2(3)(d), which provides that public employment contracts are excluded from the scope of the Chapter. However, aspects concerning labour standards in public contracts have not been taken into account among the evaluation criteria for the notice of intended procurement or tender documentation, see 2014 EU-CETA Article 19.9(9).
414.
2014 EU-CETA, Chapter 8.
415.
2014 EU-CETA Article 21.1.
416.
Ebert, above no. 390, at 313.
417.
E.g. 2014 EU-CETA Article 23.7(1)b.
418.
Ebert, above no. 390, at 327.
419.
Ibid. Ebert gives specific examples. With regard to CETA’s investment protection provisions, he suggests having clauses providing that labour law-related measures cannot be considered an expropriation or a breach of the fair and equitable treatment standard. Such clauses would also have the purpose of reducing the chilling effects of the investment protection provisions vis-à-vis labour regulation. In a similar vein, CETA’s Procurement Chapter could contain a clause to provide that the agreement does not prevent the inclusion of labour standards-related conditions in public contracts.
420.
Ebert, above no. 390, at 328–329.
421.
Detailed information can be found at: https://trade.ec.europa.eu/doclib/press/index.cfm?id=1230, accessed 14 June 2020; TTIP is also known as the Transatlantic Free Trade Area (TAFTA), see Fung (2014). The initiative to establish TTIP was taken in November 2011 during an EU–US summit. A High Level Working Group on Jobs and Growth was set up soon after, chaired by the European Trade Commissioner Karel De Gucht and the US Trade Representative Ron Kirk. The purpose of the Group was to identify ways to increase trade and investment between the EU and the US. Its final report of February 2013 included a recommendation to enter into negotiations aimed at a wide agreement in the field of trade and investment. Negotiations were launched at the G8 summit at Lough Erne, Northern Ireland, in June 2013 and the first negotiation round began on July 8, 2013. After 15 negotiating rounds the negotiations ended without conclusion in November 2016. A Council Decision of 15 April 2019 states that the negotiating directives for TTIP have become obsolete, see Council of the European Union, Council Decision authorising the opening of negotiations with the United States of America for an agreement on the elimination of tariffs for industrial goods, No. 6052/19, Brussels, 9 April 2019, Article 3. TTIP together with CETA has been the subject of much opposition, see the European Citizen’s’ Initiative (ECI) “STOP TTIP” (aimed at preventing negotiations on TTIP and CETA, for reasons relating to the procedures of the investors-states dispute resolution and the provisions on regulatory cooperation seen as a threat to democracy and the rule of law), which the EU Commission refused to register. This decision was challenged successfully before the General Court, which annulled the Commission’s decision, see Case T-754/14 Efler and Others v Commission ECLI:EU:T:2017:323; for case commentary, see Fahey (2017); for academic discussion and critique of TTIP, see Special Issue on TTIP, Baetens et al. (2016).
422.
Malmström (2015).
The US equivalent is the Trans-Pacific Partnership Agreement (TPP), signed on 4 February 2016, between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States (a copy is available at: https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text, accessed on 20 March 2020). It never entered into forced because of the withdrawal of the US from the agreement on 23 January 2017. Like most US FTAs, the TPP includes a comprehensive chapter on labour issues, Chapter 19, which among others requires parties to generally adopt laws and regulations on ILO core labour rights, that no party shall encourage trade or investment by weakening or reducing labour laws; that labour laws shall be effectively enforced; that no party shall eliminate all forms of forced or compulsory labour domestically as well as discourage importation of goods from other sources produced with compulsory labour. With regard to the agreement’s institutional and procedural rules, the TPP foresees the possibility of public submissions, cooperative activities, a cooperative labour dialogue, a labour council, contact points and public engagement. To enforce these commitments, it foresees a procedure for labour consultations with clear deadlines. Significantly, all provisions of the Labour Chapter are subject to the TPP’s dispute settlement procedure and a dispute may result in sanctions, see Chapter 28 of TPP. The novelty of TPP in comparison to current US FTA practice is represented by a number of bilateral side agreements negotiated between the US and Vietnam, Malaysia and Brunei, namely, those TPP parties, which are considered as having low labour standards and are slow or reluctant in ratifying ILO labour conventions. These side agreements provide that the countries concerned must put in place a number of ad hoc domestic reforms in order to benefit from duty free access to the US. These side agreements constitute the US pre-ratification conditionality practice, which to date has been used quite effectively by the US, see further Hornbeck (2009); Vogt, above no. 337, 836–842.
423.
European Commission, ‘EU textual proposal: Trade and sustainable development in TTIP’, Brussels, Belgium, available at: https://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153923.pdf; this textual proposal is the European Union’s initial proposal for legal text on “Trade and Sustainable Development” in TTIP. It was tabled for discussion with the US in the negotiating round of 19–23 October 2015 and made public on 6 November 2015; for detailed analysis, Gruni (2016).
424.
European Parliament, Resolution of 8 July 2015 containing the European Parliament’s recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP). Strasbourg: European Parliament, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0252+0+DOC+XML+V0//EN, accessed 14 June 2020.
425.
This term has been borrowed from Melo Araujo, above no. 79, at 234.
426.
Article 4(2) of the Textual Proposal provides that: provides that:
‘In accordance with the obligations of all ILO members and the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference at its 86th Session in 1998 and its Follow-up, each Party shall:
1. (a)
  ensure that its laws and practices respect, promote, and realise within an integrated strategy, in its whole territory and for all, the internationally recognised core labour standards, which are the subject of the fundamental ILO Conventions, namely:
  1. (i)
    the freedom of association and the effective recognition of the right to collective bargaining;
  2. (ii)
    the elimination of all forms of forced or compulsory labour;
  3. (iii)
    the effective abolition of child labour; and
  4. (iv)
    the elimination of discrimination in respect of employment and occupation;
2. (b)
  in this context, continue to make sustained efforts towards ratifying the fundamental ILO Conventions and their Protocols, and regularly exchange information on its respective situation and advancements as regards the ratification of these as well as of priority and other ILO Conventions that are classified as up to date by the ILO and their Protocols.’
427.
E.g. Articles 5–9 of the Textual Proposal.
428.
As to working conditions, the Textual Proposal is not as detailed in that it provides a broad obligation—in accordance with the ILO Decent Work Agenda, as expressed in the ILO Declaration on Social Justice for a Fair Globalisation of 2008, and in accordance with its other international commitments—to guarantee the protection of health and safety at work and decent working conditions for all. There is no detailed description of how such standards can be implemented in practice, and only a short and open-ended list of areas and issues that must be covered by domestic legislation, such as decent working conditions being ensured in relation to wages and earnings, working hours and other conditions in order to guarantee a minimum living wage, see Article 4(3) of the Textual Proposal.
429.
E.g. Article 17 of the Textual Proposal, which provides that:
1. 1.
  The Parties recognise that it is inappropriate to weaken or reduce the levels of protection afforded in domestic environmental or labour laws in order to encourage, or in a manner affecting, trade or investment.
2. 2.
  A Party shall not waive or derogate from, or offer to waive or derogate from, its environmental or labour laws as an encouragement for, or in a manner affecting, trade or investment.
3. 3.
  A Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental or labour laws as an encouragement for, or in a manner affecting, trade or investment.
The first paragraph reproduces the provision found in Article 73 of the 2008 EU-CARIFORUM EPA with the difference that it is not drafted in legally binding terms as the latter, which is clearly termed as a legal obligation of the parties to the agreement, cfr. ‘recognise that’ found in the former with ‘shall ensure’ found in the EPA. Paragraphs 2 and 3 are meant to prevent parties from resorting to social dumping. However, the way they are drafted makes it difficult to understand which labour provisions/rights are covered and to determine the causal link between derogation from labour standards and trade and/or investment. There is also no reference to enforcement mechanisms. See further Gruni, above no. 424.
430.
European Parliament, above no. 406, Section d, points (ii)–(vi); on similar positions, see also European Trade Union Confederation (ETUC) and the American Federation of Labor and Congress of Industrial Organizations (AFL/CIO), ‘TTIP must work for the people or it won’t work at all’, Declaration of Joint Principles ETUC/AFL-CIO, 10.07.2014, Brussels, Belgium, available at: https://www.etuc.org/sites/default/files/document/files/afl-cio_ttip_report_uk_1.pdf, accessed on 14 June 2020.
431.
Article 4(2)(b) of the Textual Proposal.
432.
Article 4(4) of the Textual Proposal.
433.
E.g. Article 17 of the Textual Proposal.
434.
It is noteworthy that Business Europe has presented its position on TTIP’s Trade and Sustainable Development Chapter along similar lines as the EU Commission calling for a more conservative approach in relation to the ILO Conventions and for a softer approach focused on consultation and cooperation, see Business Europe, ‘TTIP: the sustainability chapter’, Position Paper, Brussels, Belgium, May 2015, available at: https://www.businesseurope.eu/sites/buseur/files/media/imported/2015-00382-E.pdf, accessed 14 June 2020.
435.
Melo Araujo, above no. 79, at 250.
436.
Melo Araujo, above no. 79, at 234.
437.
Tham and Ewing, above no. 337, at 24.
438.
Ibid.
439.
E.g. Case No 2460 (United States)—Complaint date: 07-DEC-05—The United Electrical, Radio and Machine Workers of America (UE) supported by Public Services International (PSI); Case No 2524 (United States)—Complaint date: 20-OCT-06 American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); Case No 2547 (United States)—Complaint date: 26-FEB-07 United Automobile, Aerospace and Agricultural Implement Workers of America International Union (UAW) and American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).
440.
International Labour Organization, ‘Your Voice at Work: Global Report under the Follow-Up to the Declaration on Fundamental Principles and Rights at Work’ (Report, 2000) https://perma.cc/AT8W-ATAF, accessed on 22 March 2020, paras. 74, 103–104, concerning restrictions in agriculture, strike restrictions on state employees and the use of replacement labour in all strikes.
441.
Tham and Ewing, above no. 337, at 25.
442.
Various EU Member States have been found to breach ILO Convention No. 87, see further above, infra Sect. 5.3.1.2. of this chapter; for detailed analysis, see Novitz (2017).
443.
For further analysis, Orbie et al. (2016).
444.
W. T. Douma, ‘The Promotion of Sustainable Development through EU Trade Instruments’ in L. Pantaleo, and M. Andenas (eds) The European Union as a Global Model for Trade and Investment, University of Oslo Faculty of Law Legal Studies Research paper Series No 2016-02, 86; F. de Andrade Correa, ‘The Integration of Sustainable Development in Trade Agreements of the European Union’ in D. Kleimann, ‘EU Preferential Trade Agreements: Commerce, Foreign Policy and Development Aspects’, International Trade Observatory and Relex Working Group, European University Institute, Robert Schuman Centre for Advanced Studies, 141, available at: cadmus.eui.eu/handle/1814/27661, accessed 20 March 2020.
445.
L. Bartels, ‘The Role of Civil Society in Monitoring Free Trade Agreements’, Report for the EU European Economic and Social Committee, EESC/COMM/16/2012.
446.
Orbie, Martens and Van den Putte, above no. 444, 12–25.
447.
2011 EU-Korea FTA, Article 13.12(3)-(5) and Article 13.13.
448.
2012 EU-Colombia/Peru, Article 282.
449.
2012 EU-CAAA, Part III.
450.
For further analysis of alternative forms to representative democracy, their legal force and the credibility of the EU’s meaningful use in decision-making and implementation processes, particularly in relation to Art.11 TEU, see Korkea-aho (2017).
451.
Orbie, Martens and Van den Putte, above no 444, 28.
452.
Ibid.
453.
For further discussion on issues of (political) injustice, misrepresentation and mis-framing, see Fraser (2005); see also Wheatley (2010).
454.
Ibid., at p. 77.
455.
Keck and Sikkink (2002).
456.
In this sense, see Orbie, Martens and Van den Putte, above 444, 47–48; for an analysis of experimentalist governance in the context of EU external action, see Zeitlin (2015).
457.
Velluti, above no. 2, at 110.
458.
Moore and Scherrer (2017).
459.
Marx et al. (2016).
460.
FES Korea (2016); see also European Commission, Evaluation of the Implementation of the Free Trade Agreement between the EU and its Member States and the Republic of Korea Interim Technical Report Part 1: Synthesis Report, prepared by Civic Consulting and the Ifo Institute June 2017, available at https://trade.ec.europa.eu/doclib/docs/2017/june/tradoc_155673.pdf, accessed on 14 June 2020, pp. 174–177.
461.
A study on labour provisions in EU trade agreements with South Korea, Moldova and CARIFORUM, shows that labour provisions were not considered as a natural part of trade agreements by these countries’ negotiators, see Harrison et al. (2019), at 265.
462.
Van Den Putte (2016).
463.
eg Art.13.4 subpara.3 and Art.13.7 subpara.2 of the 2011 EU-Korea FTA.
464.
Marx, Brecht and Brando, above no. 460, 5.
465.
eg Art.13.7 subpara.2 of the 2011 EU-Korea FTA.
466.
eg Art.13.15 of the 2011 EU-Korea FTA.
467.
ILO, Report on Social Dimensions of Free Trade Agreements, International Institute for Labour Studies, Geneva, Switzerland, 2013, Ch. 3.
468.
Douma, above no. 445, p. 101; the analysis focuses specifically on the 2012 EU-Colombia/Peru Trade Agreement as an example of the new generation of EU trade agreements. For a critical analysis of the meaning of sustainable development and sustainability also in the light of the UN Sustainable Development Goals (SDGs) 2015, see Gammage and Novitz (2019); on the SDGs and the UN’s 2030 Agenda, for Sustainable Development see, UN General Assembly, Resolution on Transforming our world: the 2030 Agenda for Sustainable Development, Seventieth session, 25 September 2015, available at: https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E, accessed on 14 June 2020; see also the dedicated website on the SDGs at: https://www.un.org/sustainabledevelopment/sustainable-development-goals/, accessed on 14 June 2020.
469.
Harrison et al., above no. 462, at 273.
470.
In the original text ‘was creating.’.
471.
Van den Putte, above no. 463, at p. 101.
472.
Ibid.
473.
Bartels, above no. 236, at 312.
474.
Ibid.
475.
Moore and Scherrer, above no. 459, p. 3; Novitz argues that ‘there may be benefits to supplementing bare human rights compliance with a richer and more nuanced SD perspective, but that we have yet to see trade instruments which realize that ambition’, see Novitz (2018).
476.
Moore and Scherrer, above no. 459, p. 3.
477.
Moore and Scherrer, above no. 459, p. 1.
478.
Signed on 20 January 1999 for a three-year period, and then extended for a further three years, the textile agreement between the US and Cambodia expired in January 2005; see Agreement Relating to Trade in Cotton, Wool, Man-made Fiber, Non-Cotton Vegetable Fiber and Silk Blend Textiles and Textile Products Between the Government of the United States of America and the Royal Government of Cambodia, available at: https://photos.state.gov/libraries/cambodia/231771/PDFs/uskh_texttile.pdf, accessed on 14 June 2020.
479.
For detailed analysis, see Kolben (2004).
480.
In particular, Article 10(D), to be read in combination with the other paragraphs A-C, referred to working conditions in the Cambodian textile and apparel sector substantially complying with Cambodian labour law and internationally recognized core labour standards. In the amended version, the agreement offered a possible 18 percent annual increase provided that Cambodia would support the implementation of a programme to improve working conditions including internationally recognized core labour standards, through the application of Cambodian labour law.
481.
Kolben, above no. 480, at 81.
482.
Ibid., at 80-81.
483.
J.-M. Siroën, above no. 163, 98.
484.
In this sense the new agreement that the EU and Mexico have agreed in principle in April 2018 seems to go in right direction. The text of the agreement is available at: https://trade.ec.europa.eu/doclib/press/index.cfm?id=1833, accessed on 14 June 2020. The agreement will be part of a broadened and revised ‘Global Agreement’, which entered into force in 2000, see Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, 28.10.2000 OJ L 276/45. It is the first of its kind to include provisions to tackle corruption in the private and public sector. These set of anti-corruption provisions are particularly salient for labour protection in Mexico. Prior to this agreement, the EU has addressed corruption under a different type of trade agreement, namely, the Deep and Comprehensive Free Trade Agreement (‘DCFTA’). Significantly, its TSD Chapter includes a provision on the responsible management of supply chains, which makes explicit reference to corporate social responsibility and lists various documents that the Parties must ‘promote’ ‘disseminate’ or ‘use’, namely, the Organisation for the Economic Cooperation and Development (OECD) (2011), the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body of the International Labour Office at its 204th Session (Geneva, November 1977) and amended at its 279th (November 2000), 295th (March 2006) and 329th (March 2017) Sessions, the International Labour Office, Geneva, Switzerland, available at: https://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/---multi/documents/publication/wcms_094386.pdf, accessed on 14 June 2020, and the UN Global Compact and the UN Guiding Principles on Business and Human Rights, see Article 9 of the EU-Mexico, text available at: https://trade.ec.europa.eu/doclib/docs/2018/april/tradoc_156822.pdf, accessed on 5 September 2019.
485.
Bartels (2014b). In particular, see p. 30, where Bartels suggests adding a clause to ‘the general exceptions that are included in every trade agreement, permitting a party to adopt measures taken to respect, promote or fulfil human rights as defined in the essential elements clause. Importantly, it would need to be clear that measures may be adopted with respect to human rights domestically as well as extraterritorially’ and p. 31 where he suggests having more ‘specificity as to the human rights aspects of the monitoring process.’ The same rationale could be extended to social clauses in the “new generation” of free trade agreement.
486.
ILO (2013), Chapter 4; see also European Parliament, Resolution on implementation of the 2010 recommendations of Parliament on social and environmental standards, human rights and corporate responsibility of 5 July 2016 (2015/2038(INI)), para 22(b), where the EU Parliament suggests granting civil society and, in particular, Domestic Advisory Groups the right to complain about labour standards breaches before the European Commission.
487.
European Commission (2016a); a list of completed and ongoing assessments is available at http://ec.europa.eu/trade/policy/policy-making/analysis/sustainability-impact-assessments/assessments/; the 2011 Joint Communication of the European Commission and High Representative of the European Union for Foreign Affairs and Security Policy on Human Rights and Democracy at the Heart of EU External Action—Towards a More Effective Approach, COM(2011)886 final. (2011) explicitly refers to the importance of impact assessments; see also the 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy, of 25 June 2012. Luxembourg, Luxembourg. 11855/12 which expressly calls for the insertion of human rights in Impact Assessment, as and when it is carried out for trade agreements that have significant economic, social and environmental impacts. The new generation of trade SIAs reflect this goal; for further analysis, see Cote (2014).
488.
Further information is available at ec.europa.eu/trade/policy/policy-making/analysis/index_en.htm#_bilateral-regional, accessed 6 February 2017.
489.
There are also economic assessments of the negotiated outcome (EANOs). Once the negotiations are concluded, and before the trade agreement is signed, an economic analysis of the proposed agreement for the EU is prepared by the services of the Directorate-General (DG) Trade of the Commission for the European Parliament and the Council. The analysis assesses the impact of the actual outcome of the negotiations with regard to the reduction of trade barriers. This economic assessment is distinct from SIAs in which estimation of the likely impact of a proposed trade agreement is based on assumptions about the level of such reductions that will be achieved. It should also be noted that the economic assessment of the negotiated outcome is a trade-specific instrument and relates only to negotiations conducted by DG Trade: Nilsson, Lars, ‘EU Trade Policy: Recent Progress and Analytical Advances’ (GIFTA Workshop on ‘Social and Labour Impacts of Free Trade Agreements’, German Marshall Fund, Brussels, July 2016).
490.
See above infra no. 488.
491.
The EU trade SIAs are outsourced to competitive agencies and experts selected by the Commission who will employ a specific methodology, deliver economic analysis, carry out a preliminary assessment, provide detailed sector studies and a final synthesis report. Potentially these agencies and experts have a role as legal subjects in carrying out these SIAs. Economic, social and environmental impacts outside the EU are explicitly part of the analysis. European Commission, Better Regulation Guidelines, COM(2015) 215 final; European Commission, Better Regulation Toolbox Toolbox 16, Identification/Screening of Impacts, available at: ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf, accessed 6 February 2017.
492.
The relevant type of object will depend on the specific sector and/or nature of the issue addressed, as SIAs are generally highly contextualized.
493.
Oxfam (2008); Office of the United Nations High Commissioner for Human Rights (2010).
494.
Human Rights Council (2007).
495.
PricewaterhouseCoopers (2007); see also Bilal et al. (2009) and CEPII-CIREM (2008).
496.
Harrison and Goller suggest the setting up of a mechanism for reviewing the implementation of agreements in accordance with human rights norms, on the basis of a human rights impact assessment, see Harrison and Goller (2008). The 2008 EU-CARIFORUM EPA includes a procedural framework for carrying out human rights impact assessments and for reviewing the agreement. Article 5 states that: ‘The Parties undertake to monitor continuously the operation of the Agreement through their respective participative processes and institutions, as well as those set up under this Agreement, in order to ensure that the objectives of the Agreement are realised, the Agreement is properly implemented and the benefits men, women, young people and children deriving from their Partnership are maximised. The Parties also undertake to consult each other promptly over any problem that may arise’; on this point see Bartels, above no. 465, at 31.
497.
With the 2009 Treaty of Lisbon there has been growing emphasis on the need to develop tailor-made approaches to human rights–relevant policies, including trade policy, the use of impact assessments to ensure human rights consistency and, linked to the former, the importance of inserting human rights in impact assessments. Since 2012, and in line with Article 21 TEU, a new generation of EU trade SIAs has thus started to integrate, albeit partially, human rights considerations into their research methodologies; see European Commission (2011); see also Council of the European Union (2012), 2.
498.
Human Rights Council (2008), para. 37.
499.
United Nations (UN) (2011) (known as “Guiding Principles on HRIA”); UN Guiding Principles on Business and Human Rights (United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. Final Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie. 21 March 2011, A/HRC/17/31 (known as the “Ruggie Principles”).
500.
For a detailed list and analysis of HRIAs, see Harrison (2010); for academic commentary, see Harrison (2011).
501.
Ibid.
502.
Ibid.
503.
Joseph (2011), at p. 272.
504.
European Commission (2011).
505.
Ibid., pp. 11–12 and 19.
506.
Council of the European Union, above note 4, Action 1, p. 6.
507.
E.g. SIA of the EU–Georgia and EU–Moldova DCFTAs; European Commission, ‘Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives’, Directorate-General for Trade, Brussels, July 2015, http://trade.ec.europa.eu/doclib/docs/2015/july/tradoc_153591.pdf, accessed on 20 March 2020; for detailed analysis of this new generation of trade SIAs, how they measure human rights impact of the trade agreements and the extent to which they are informed by human rights considerations, see Bürgi Bonanomi (2016).
508.
George and Kirkpatrick (2008).
509.
Bürgi Bonanomi (2014).
510.
UN Guiding Principles on HRIA 2011, Part II, 2.6, p. 6.
511.
Bürgi Bonanomi, above no. 510, 14.
512.
Detailed information is available at: https://ec.europa.eu/info/law/law-making-process/evaluating-and-improving-existing-laws/evaluating-laws_en#:~:text=The%20Commission%20evaluates%20if%20specific,should%20be%20continued%20or%20changed, accessed on 14 June 2020.
513.
PricewaterhouseCoopers (2007); see also B. Sanoussi et al., above no. 496; CEPII-CIREM (2008).
514.
Oxfam (2008).
515.
Ibid. A study conducted for the EU Parliament clearly recommends that EPAs with ACP countries should not contain an MFN provision; European Parliament, ‘African, Caribbean and Pacific (ACP) countries’ position on Economic Partnership Agreements (EPAs)’, EP Directorate-General for External Policies, Policy Department, EXPO/B/DEVE/2013/30, April 2014 at p. 7.
516.
Portela, above no. 200, pp. 10–14. The proposed enforcement mechanism would also be applicable to the GSP scheme.
517.
For a detailed examination of CFSP sanctions, see Portela (2011); for critical analysis of the use of restrictive measures see, Poli (2017); on the use of targeted sanctions and human rights, see Happold (2016).
518.
At this stage the EU Commission would be deciding whether or not to proceed after consulting with the European Council. It is also noteworthy how this proposed enforcement mechanism draws on the overall enforcement procedure of the GSP scheme with an improved “targetability”, Portela, above no. 200, at 10, citing Charnovitz (2005), at p. 161.
519.
Portela, above no. 200, at 12.
520.
Ibid., at 16.
521.
European Parliament (2010) para 22(a); European Parliament (2015) paras 22(c) and (d).
522.
Portela, above no. 200, at 13.
523.
Harrison et al., above no. 3, at 12.
524.
Author's addition.
525.
Adriaensen and González-Garibay (2013), at 553, and 549–555.
526.
Ibid., at 543.
527.
Ibid.
528.
European Commission (2017a, 2018a).
529.
Bronckers and Gruni (2018).
530.
European Parliament and European Council (2015). For a proposal extending the model of Investor-State Dispute Settlement (ISDS) to the provisions of the Trade and Sustainable Development Chapter, see Gött (2018).
531.
As per the recognition procedure of Article 154 TFEU. Their proposal—as suggested—would address the so-called “insider-outsider dilemma” of civil society representatives, including social partners who are often reluctant to take part in an enforcement mechanism of a trade agreement that they seldom approve of. This dilemma is exacerbated by the lack of transparency of the negotiation process that typifies the adoption of EU trade agreements. For instance, the meetings of the Civil Society Dialogue on Trade have largely acted as an informative session rather than providing the forum for active participation and real dialogue, see further Moore and Scherrer, above no. 459, at 13. This state of affairs also extend to domestic organized labour, see Harrison et al., above no. 462, at 266.
532.
In this sense, see the Free Trade Agreement between the United States and Chile (USCFTA), signed on 6 June 2003 and entered into force on 1 January 2004, see the U.S.-Chile Free Trade Agreement Implementation Act (“the Act”; Public Law 108-77; 117 Stat. 909; 19 U.S.C. 3805 note). The final text is available at: https://ustr.gov/archive/Trade_Agreements/Bilateral/Chile_FTA/Final_Texts/Section_Index.html, accessed on 14 June 2020. It is the first FTA between the United States and a South American country. The 2004 USCFTA is an example of best practice, specifically for including an enforcement mechanism which combines sanction and incentive-based procedures thereby including the payment of fines into a fund for improving the specific labour rights violations that occurred, alongside the removal of trade preferences as a last resort; see Article 22.16 subpara. 4. of the 2004 USCFTA.
533.
Sengenberger (2009).
534.
The 2008 EU-CARIFORUM EPA provided the blueprint for a new monitoring mechanism that envisages changes to the agreement whenever problems arise during the implementation process. A number of institutions and bodies play a pivotal role in implementing the agreement. The Joint CARIFORUM-EU Council, the highest organ at ministerial level (Article 227), which is supported by the Trade and Development Committee (Article 230), meeting annually at senior official level. These institutions discuss all questions concerning the EPA. The Parliamentary Committee (Article 231) draws on the Lomé and the Cotonou agreements and foresees the involvement of parliaments. The most innovative body of the EPA is the Consultative Committee, which is composed of representatives of civil society, academics, and the social and business partners, and is entitled to make recommendations to the EPA Council and the Trade and Development (Article 232). This institution could play a key role in identifying the implementation problems and ways forward to address them. However, the meetings should be held more than once a year with better funding, see Schmieg (2015), at 26.
535.
To date only the EU-South Korea DAG meets on a regular basis.
536.
Van Den Putte (2015b), at 225.
537.
Bartels (2014a), at 18.
538.
E.g. the 1993 NAALC provides for the establishment of national administrative offices in the Ministry of Labour (NAOs, e.g. Articles 15-16). It also provides for any person or group (the “submitter”) in a NAFTA country may file a submission with a NAO, not in the country to which the dispute relates, alleging that one or other of the governments has failed effectively to enforce its labour laws (Article 16(3), namely, public complaints referred to in the text as “public communications”).
539.
EU Commission, above no. 529, at p. 7.
540.
E.g. to improve the involvement and activities of civil society and to foster responsible supply chains.
541.
Harrison et al., above no. 3, at p. 17.
542.
E.g. the 2006 US-Morocco Free Trade Agreement, final text available at: https://ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text, the 2006 US-Bahrain Free Trade Agreement, available at: https://ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text, the 2009 US-Oman Free Trade Agreement, available at: https://ustr.gov/trade-agreements/free-trade-agreements/oman-fta/final-text, the 2012 US-Colombia Trade Promotion Agreement, available at: https://ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text, all accessed on 14 June 2020; for detailed analysis, see ILO (2013a).
543.
European Commission (2018a), above no. 529, p. 2.
544.
E.g. the 2009 US-Peru Trade Promotion Agreement, final text available at: https://ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text, Article 21.2 entitled ‘Scope of Application’ of the DSM of the agreement, which provides that: ‘1. Except as otherwise provided in this Agreement, the dispute settlement provisions of this Chapter shall apply with respect to the avoidance or settlement of all disputes between the Parties regarding the interpretation or application of this Agreement […],’ accessed on 23 March 2020.
545.
E.g. Article 10(1) and (2)a and c, of the new agreement between the EU and Mexico entitled ‘Other Trade- and Investment-related Initiatives Favouring Sustainable Development’ provides that:
1. 1.
  The Parties confirm their commitment to enhance the contribution of trade and investment to the goal of sustainable development in its economic, social and environmental dimensions.
2. 2.
  Pursuant to paragraph 1, the Parties shall promote:
  1. (a)
    trade and invest ent policies that support the objectives of the Decent Work Agenda, consistent with the 2008 ILO Declaration on Social Justice for a Fair Globalisation, including policies in regard to wages, earnings and working hours, inclusive social protection, health and safety at work, and other aspects related to working conditions;
  2. (b)
    trade in goods that contribute to enhanced social conditions and environmentally sound practices, including goods that are the subject of voluntary sustainability assurance schemes such as fair and ethical trade schemes and eco-labels;
3. 3.
  Each Party should cooperate with the other Party bilaterally, regionally and in international fora on issues in this article.
546.
In their draft Sustainability Chapter, Lukas and Steinkellner suggest specific time frames. In particular, they suggest that submissions should be considered by a panel of experts within 90 days after the delivery of the request for consultations (Article 15); they also suggest that the parties to an agreement should within 180 days after the entry into force of the agreement, enter into discussions to adopt rules of procedure, which should be the role of the Committee on the Trade and Sustainable Development (Article 16(11), see Lukas and Steinkellner (2010), p. 20.
547.
In particular for sanctions the monetary fine should go into a fund that would specifically target the labour violation under consideration, e.g. 2004 US-Chile FTA.
548.
EU Commission, above no. 529, at p. 2.
549.
Harrison et al. above no. 462, at 273.
550.
As outlined in detail in Sect. 5.3.5.
551.
Lamy (2006a); see also Lamy (2006b).
552.
Hepple, above no. 31, at p. 5.

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Free Trade Agreement between the European Union and Singapore, 17 October 2014, Authentic text as of May 2015. Available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=961. Accessed 14 June 2020
Free Trade Agreement between the European Union and the Socialist Republic of Vietnam, (2016) Agreed Text as of January 2016. Available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437. Accessed 14 June 2020
Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) Between Canada and the European Union and its Member States, OJ 14.1.2017, L11/3
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Table of cases

Cases of the Court of Justice of the European Union

General Court

Case T-754/14, Efler and Others v Commission, ECLI:EU:T:2017:323
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European Court of Justice

C-438/05 International Transport Workers’ Federation v Viking Line ABP ECLI:EU:C:2007:772
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C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet ECLI:EU:C:2007:772
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Opinion 2/15 Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU, OJ [2015] C 363/22, 3.11.2015
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Official Documents of the EU Institutions and BodiesOfficial Documents of the EU Institutions and Bodies

European Commission

European Commission, Communication from the Commission, A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development (Commission’s proposal to the Gothenburg European Council) /* COM/2001/0264 final */; further information can be found at: https://ec.europa.eu/environment/sustainable-development/strategy/index_en.htm. Accessed 14 June 2020
European Commission, Proposal for a Council Regulation applying a scheme of generalized tariff preferences COM(2004) 699
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European Commission, Proposal for a council regulation temporarily withdrawing access to the generalised tariff preferences from the Republic of Belarus COM (2006) 438 final
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European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 4 October 2006 ‘Global Europe: Competing in the world’ COM(2006) 567 final
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European Commission, Report of the Investigation pursuant to Article 18(2) of the Council Regulation (EC) No. 980/2005 with respect to the protection of the freedom of association and the right to organize in El Salvador, C(2009) 7934 (2009)
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European Commission, Report on the findings of investigation with respect to the effective implementation of certain human rights conventions in Sri Lanka, Brussels, Belgium, 19 October 2009, C(2009) 7999. Available at: https://reliefweb.int/sites/reliefweb.int/files/resources/9501F5EFE0C4F6C449257655000EECA5-Full_Report.pdf. Accessed 14 June 2020
European Commission, Implementing Regulation (EU) No. 143/2010 of 15 February 2010 temporarily withdrawing the special incentive arrangement for sustainable development and good governance provided under the Regulation (EC) No 732/2008 with respect to the Democratic Socialist Republic of Sri Lanka, OJ [2010] L 45/2010, 22.7.2010, p 1
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European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Increasing the Impact of EU Development Policy: an Agenda for Change COM(2011) 637 final
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European Commission, Commission Delegated Regulation (EU) No. 155/2013 of 18 December 2012
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European Commission, Commission Delegated Regulation (EU) No. 1083/2013 of 28 August 2013 establishing rules related to the procedure for temporary withdrawal of tariff preferences and adoption of general safeguard measures under Regulation (EU) No. 978/2012 of the European Parliament and the Council applying a scheme of generalized tariff preferences
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European Commission, DG Trade, ‘Joint Statement by EU Trade Commissioner Karel De Gucht and Bangladesh Foreign Minister Dr Dipu Moni following recent disasters in the Bangladeshi garment manufacturing industry’ (Brussels, 28 May 2013). Available at: https://ec.europa.eu/commission/presscorner/detail/es/IP_13_667. Accessed 14 June 2020
European Commission Final report on ‘The Use, Scope and Effectiveness of Labour and Social Provisions and Sustainable Development Aspects in Bilateral and Regional Free Trade Agreements’, 15 September 2008, Chapter 2. Available at: https://ec.europa.eu/social/BlobServlet?docId=2111&langId=en. Accessed 14 June 2020
European Commission, Trade for All—Towards a More Responsible Trade and Investment Policy, 6 February 2017. Available at: trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf. Accessed 14 June 2020
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European Commission, Better Regulation Guidelines, COM(2015) 215 final
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European Commission, Commission Delegated Regulation (EU) 2015/602 of 5 February 2015 amending Regulation (EU) No 978/2012 of the European Parliament and the Council as regards the vulnerability threshold defined in point 1(b) of Annex VII to that Regulation, OJ L100/8, 17.4.2015
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European Commission, Joint Staff Working Document on the EU Special Incentive Arrangement for Sustainable Development and Good Governance (GSP+) covering the period 2014–2015
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European Commission, GSP+ Report on Sustainability, Human Rights and Good Governance. Questions and Answers. Brussels, Belgium, 28.01.2016. Available at: trade.ec.europa.eu/doclib/docs/2016/january/tradoc_154179.pdf. Accessed 14 June 2020
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European Commission, Joint Staff Working Document on the EU Special Incentive Arrangement for Sustainable Development and Good Governance (GSP+) covering the period 2014–2015, Brussels, 28.01.2016, SWD (2016) 8 final
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European Commission, Report from the Commission to the European Parliament and the Council, Report on the Generalised Scheme of Preferences Covering the Period 2014–2015, COM(2016) 29 final, Brussels, 28.1.2016 (SWD2016) 8 final)
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European Commission, ‘Reflection Paper on Harnessing Globalisation’ 10 May 2017, pp 14–15, COM(2017) 240
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European Commission (2017a) Trade and sustainable development chapters in EU free trade agreements, non-paper, 11 July 2017. Available at: http://trade.ec.europa.eu/doclib/docs/2017/july/tradoc_155686.pdf. Accessed 14 June 2020
European Commission, Mid-Term Evaluation of the EU’s Generalised System of Trade Preferences (GSP), Final Interim Report, prepared by DEVELOPMENT Solutions for the Directorate-General for Trade Directorate D—Sustainable Development; Economic Partnership Agreements—Africa Caribbean and Pacific; Agri-food and Fisheries Unit D1—Trade and Sustainable Development, Generalised system of Preferences, Brussels, Belgium, 21 September 2017. Available at: https://trade.ec.europa.eu/doclib/docs/2018/october/tradoc_157434.pdf. Accessed 14 June 2020
European Commission (2017b) Implementation of the Bangladesh compact: technical status report. Available at: http://trade.ec.europa.eu/doclib/docs/2017/october/tradoc_156343.pdf. Accessed 14 June 2020
European Commission (2017c) Commission Delegated Regulation (EU) 2017/836 of 11 January 2017 amending Annex III to Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences, OJ 18.5.2017 L 125/1
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European Commission, ‘EU Grants Sri Lanka Improved Access to Its Market as Incentive for Reform’, Press Release IP/17/1363, Brussels, Belgium, May 17, 2017. Available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1663. Accessed 14 June 2020
European Commission, Evaluation of the Implementation of the Free Trade Agreement between the EU and its Member States and the Republic of Korea Interim Technical Report Part 1: Synthesis Report, prepared by Civic Consulting and the Ifo Institute, June 2017. Available at: https://trade.ec.europa.eu/doclib/docs/2017/june/tradoc_155673.pdf. Accessed 14 June 2020
European Commission (2018a) Feedback and way forward on improving the implementation and enforcement of trade and sustainable development chapters in EU free trade agreements, non-paper, 26 February 2018. Available at: http://trade.ec.europa.eu/doclib/docs/2018/february/tradoc_156618.pdf. Accessed 14 June 2020
European Commission, ‘Staying Engaged: The Sustainability Compact for the Bangladesh Ready Made Garment Sector’. Available at: https://trade.ec.europa.eu/doclib/docs/2018/june/tradoc_157065.pdf. 14 June 2020
European Commission (2018b) Feedback and way forward on improving the implementation and enforcement of Trade and Sustainable Development chapters in EU Free Trade Agreements. Directorate General for Trade, Brussels, Belgium, 26 February 2018. Available at: https://trade.ec.europa.eu/doclib/docs/2018/february/tradoc_156618.pdf. Accessed 14 June 2020
European Commission, ‘EU moves ahead with dispute settlement over workers’ rights in Republic of Korea’, News, Directorate for Trade, Brussels, Belgium, 6 July 2019. Available at: http://trade.ec.europa.eu/doclib/press/index.cfm?id=2044. Accessed 14 June 2020
European Commission and European External Action Service, Letter sent by Trade Director of the European Commission Sandra Gallina, Director of Labour Mobility at the Directorate-General for Employment, Social Affairs and Inclusion of the European Commission, Jordi Curell and Managing director of Human Rights, Global and Multilateral Issues at the European External Action Service Lotte Knudsen, Belgium, Brussels, 31 May 2017
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European Commission and High Representative of the European Union for Foreign Affairs and Security Policy, Joint Communication to the European Parliament and the Council, Human Rights and Democracy at the Heart of EU External Action—Towards a More Effective Approach, of December 12, 2011 (COM(2011)886 final
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European Commission, High Representative of the European Union for Foreign Affairs and Security Policy (2011) Joint Communication to the European Parliament and the Council, Human Rights and Democracy at the Heart of EU External Action—Towards a More Effective Approach, of December 12, 2011 (COM(2011)886)
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European Commission—ILO, Memorandum of Understanding concerning the establishment of a strategic partnership between the International Labour Organisation and the Commission of the European Communities in the field of Development, 17 July 2004, Brussels and 16 July 2004, Geneva. Available at: https://www.ilo.org/brussels/ilo-and-eu/european-commission/WCMS_169299/lang–en/index.htm. Accessed 14 June 2020

Council of the European Union

Council Regulation, Council Regulation (EC) No. 552/97 temporarily withdrawing access to the generalized tariff preferences from Myanmar/Burma, OJ L 85, 27.3.1997
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Council Conclusions on the third Ministerial Conference of the WTO, 26 October 1999
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Council Common Position 2005/792/CFSP concerning restrictive measures against Uzbekistan [2005] OJ L 299/72
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Council Regulation, Council Regulation (EC) No. 1933/2006 of 21 December 2006 temporarily withdrawing access to the generalized tariff preferences from the Republic of Belarus, OJ L 4056/2006
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Council of the European Union, EU Strategic Framework and Action Plan on Human Rights and Democracy, Luxembourg, 25 June 2012
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Council of the European Union (2012), ‘EU Strategic Framework on Human Rights and Democracy’, Luxemburg 25 June 2012, 11855/12
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Council of the European Union (2016) Council Decision of 26 Oct. 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) Between Canada, of the one hand, and the European Union and its Member States, of the other (2016/0206 (NLE))
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Council of the European Union (2019) Council Decision authorising the opening of negotiations with the United States of America for an agreement on the elimination of tariffs for industrial goods, No. 6052/19, Brussels, 9 April 2019
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European Parliament and Council of the European Union

European Parliament and European Council, Regulation (EU) No. 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No. 732/2008 OJ [2012] L303/1, 31.10.2012
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European Parliament and European Council, Regulation (EU) No. 607/2013 of the European Parliament and of the Council of 12 June 2013 repealing Council Regulation (EC) No. 552/97 temporarily withdrawing access to the generalized tariff preferences from Myanmar/Burma, OJ L 181/13
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European Parliament and European Council, Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, OJ [2014] L94/65, 28.3.2014
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European Parliament and European Council (2015) Regulation (EU) 2015/1843 of the European Parliament and of the Council of 6 October 2015, OJ L 272/1
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European Parliament

European Parliament (1994) Resolution of 9 February 1994 on the Introduction of a Social Clause in the Unilateral and Multilateral Trading System (OJ C-61, 28.2.1994, p 89)
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European Parliament (2010) Resolution on human rights and social and environmental standards in international trade agreements of 25 November 2010 (2009/2219(INI))
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European Parliament (2011) Report on the external dimension of social policy, promoting labour and social standards and European corporate social responsibility (2010/2205(INI)), Committee on Employment and Social Affairs, A7-0172/2011, of 20 April 2011
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European Parliament, Resolution of 13 June 2012 on the EU Trade Agreement with Colombia and Peru, Doc 2012/2628 (RSP), 13.6.2012
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European Parliament, Resolution of 8 July 2015 containing the European Parliament’s recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP). Strasbourg: European Parliament. Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015. Accessed 14 June 2020
European Parliament, Resolution on implementation of the 2010 recommendations of Parliament on social and environmental standards, human rights and corporate responsibility of 5 July 2016 (2015/2038(INI))
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Committee on Employment and Social Affairs

Committee on Employment and Social Affairs (2016) ‘Opinion for the Committee on International Trade on the draft Council decision on the conclusion of the Comprehensive Economic and Trade Agreement (CETA) Between Canada, of the one part, and the European Union and its Member States, of the other part (10975/2016—C8-0438/2016—2016/0205(NLE)) of 8 Dec. 2016
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European External Action Service

European External Action Service (EEAS), A Global Strategy for the European Union’s Foreign and Security Policy—Shared Vision, Common Action: A Stronger Europe, June 2016. Available at: https://eeas.europa.eu/sites/eeas/files/eugs_review_web_0.pdf. Accessed 14 June 2020

United States of America

US Trade

Agreement between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area, 41 I.L.M. 63 (2002)
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U.S.-Chile Free Trade Agreement Implementation Act (“the Act”; Public Law 108-77; 117 Stat. 909; 19 U.S.C. 3805 note). The final text is available at: https://ustr.gov/archive/Trade_Agreements/Bilateral/Chile_FTA/Final_Texts/Section_Index.html. Accessed 14 June 2020
US-Morocco Free Trade Agreement, final text available at: https://ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text. Accessed 14 June 2020
US-Bahrain Free Trade Agreement. Available at: https://ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text. Accessed 14 June 2020
US-Oman Free Trade Agreement. Available at: https://ustr.gov/trade-agreements/free-trade-agreements/oman-fta/final-text. Accessed 14 June 2020
US-Peru Trade Promotion Agreement, final text available at: https://ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text. Accessed 14 June 2020
US-Colombia Trade Promotion Agreement. Available at: https://ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text. Accessed 14 June 2020
Agreement Relating to Trade in Cotton, Wool, Man-made Fiber, Non-Cotton Vegetable Fiber and Silk Blend Textiles and Textile Products Between the Government of the United States of America and the Royal Government of Cambodia. Available at: https://photos.state.gov/libraries/cambodia/231771/PDFs/uskh_texttile.pdf. Accessed 14 June 2020
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NAFTA, The North American Free Trade Agreement, 32 I.L.M. 289 and 605 (1993); see also http://www.naftanow.org/. Accessed 23 Mar 2020
US GSP Renewal Act of 1984. Pub. L. No. 98-573, 98 Stat. 3019 (1984)
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Books and chapters in books

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Other

Doctorate dissertations

Van den Putte L (2016) The European Union’s trade-labour linkage: beyond the soft approach? University of Ghent (unpublished doctoral thesis, on file with author)
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Interview with Marco Ferri, First Counsellor in Social Affairs of the Permanent Delegation to the United Nations Office and other International Organizations in Geneva, 24 May 2013, Geneva, Switzerland
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Policy briefs, position papers and blogposts

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Sussex Law School, School of Law, Politics and Sociology, University of Sussex, Brighton, UK
Samantha Velluti

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Velluti, S. (2020). The Promotion of Social Rights and Labour Standards in EU External Trade Relations. In: The Role of the EU in the Promotion of Human Rights and International Labour Standards in Its External Trade Relations. Springer, Cham. https://doi.org/10.1007/978-3-030-56748-4_5

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DOI: https://doi.org/10.1007/978-3-030-56748-4_5
Published: 13 October 2020
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