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Child Labor, Trade and Investment: Toward the Harmonization of International Law

Published online by Cambridge University Press:  27 February 2017

Janelle M. Diller  and
David A. Levy
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Extract

Growing awareness of the economic exploitation of millions of children around the world has catapulted the issue of child labor into the public eye and brought it to the forefront of debate within governments, international organizations and the business sector. Arousing diverse interests, the debate juxtaposes the multilateral trade regime with international law governing labor standards and human rights. Each of the charters establishing the primary international organizations for cooperation in those areas is premised on the interdependence of economic and social progress. Nonetheless, the legal norms governing the various regimes differ in their scope and application to child labor, and formal linkages do not exist between the multilateral trade regime and international supervisory bodies dealing with labor standards and human rights.

Type
Notes and Comments
Information
American Journal of International Law , Volume 91 , Issue 4 , October 1997 , pp. 663 - 696
Copyright
Copyright © American Society of International Law 1997

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References

1 The term “economic exploitation of children” refers generally to types and situations of work that are “likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.” Convention on the Rights of the Child, Nov. 20, 1989, Art. 32(1), GA Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), 28 ILM 1448 (1989) [hereinafter Children’s Convention]. See also International Labour Organization (ILO), Child labour, Report of the Director-General to the International Labour Conference [IL Conf.], 69th Sess., 1983, at vi, cited in ILO, Governing Body Report, ILO Doc. GB.265/2, para. 31 (1996) [hereinafter 1996 Governing Body Report]; note 25 infra and corresponding text.

2 See, e.g., U.S. Dep’t of Labor, Hearings (June 28, 1996) (written testimony submitted for the record by Secretary of Labor Robert Reich, Congressmen George Miller and Joseph Kennedy II; business, labor, and interest groups); H.R. 2065, 104th Cong., 1st Sess. (1995) (introduced as Child Labor Deterrence Act of 1995); Ron, Corben, Thailand-Labor: Government Moves to Curb Child Abuse , Inter Press Serv., Sept. 17, 1996 Google Scholar, available in Lexis, World Library, Allwld File; Bangladesh Hopes to End Child Labour by Deadline, Reuter Eur. Comm. Rep., Sept. 17, 1996, available in id.

3 E.g., Eur. Parl. Res. on respect for human rights and the economic exploitation of prisoners and children worldwide, 1994 O.J. (C 61) 106; ILO, Child labour: What is to be done?, ILO Doc. ITM/1/1996; Faraaz Siddiqi & Harry Anthony Patrinos, Child Labor: Issues, Causes and Interventions (World Bank: Human Resources Development and Operations Policy Working Papers, 1995).

4 See, e.g., Steven, Greenhouse, Sporting Goods Concerns Agree to Combat Sale of Soccer Balls Made by Children , N.Y. Times, Feb. 14, 1997, at A12 Google Scholar; Shada, Islam, Unions Link up with FIFA to Boot Out Child Labor , Inter Press Serv., Sept. 5, 1996 Google Scholar, available in Lexis, World Library, ALLWLD File; Council on Economic Priorities (CEP), Partnership for Responsible Global Sourcing (1996) and CEP, How to Develop Guidelines for Corporate Action on Child Labor (1996), available as written testimony submitted for the record, U.S. Dep’t of Labor, supra note 2. See also infra notes 263-65 and corresponding text.

5 The increase in global economic competition following the end of the Cold War has produced a curious interaction among the diverse aims of trade, labor, and human rights proponents. The promotion of international labor standards by the World Trade Organization can help generate needed public support for free trade among labor interests. Conversely, support for free trade, and the resulting economic growth, can boost efforts to promote worker rights within the ILO. In addition, the realization of internationally recognized economic and social rights of concern to various intergovernmental entities depends largely on economic progress at the country level. Such progress, if developed in tandem with infrastructure to protect human rights, may help mitigate pressures to maintain labor standards at artificially low levels to enhance economic competition. Cf. Francis Maupain, International Protection for Workers and Liberalization of World Trade: Interaction or Interference? at 3 (unpublished paper on file with the authors).

6 E.g., Agreement Establishing the World Trade Organization, Apr. 15, 1994, preambular para. 1, 33 ILM 1263 (1994) [hereinafter WTO Agreement]; UN Charter Arts. 1(3), 55, 56 and 57; ILO Const., preambular para. 3; Declaration concerning the aims and purposes of the International Labour Organisation, May 10, 1944, annex to ILO Const. §IV.

7 Linkage between trade and core labor standards was debated at the Singapore Ministerial Conference of the World Trade Organization (WTO), with strongest support from the United States, firm opposition from India and other countries with developing economies, and division on the issue in the European Union. See WTO: Ministers Agree to do Nothing on Labour Standards, Eur. Rep., Dec. 14, 1996, available in Lexis, News Library, CURNWS File. In the end, the Ministerial Declaration pointed to the ILO as the competent body to deal with core labor standards and supported its work in that regard. The statement continued:

We believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO Secretariats will continue their existing collaboration.

WTO, Singapore Ministerial Declaration, Dec. 13, 1996, para. 4, Doc. WT/MIN(96)/DEC, 36ILM 218 (1996) [hereinafter Singapore Ministerial Declaration].

8 On the term “extreme forms of child labor,” see note 25 infra and corresponding text. Concern has been expressed that “measures which concentrate solely on the export sector may drive child labour underground, into the less regulated domestic economic sectors.” ILO, supra note 3, para. 91. Undoubtedly, the administration of export-related measures to eliminate exploitative child labor requires their coordination with development aid and other technical assistance, as well as their application in a ‘ ‘phased and planned manner.” Id.

9 A peremptory norm of international law, or jus cogens, permits no exceptions, even for a very small number of dissenting states, and is a customary norm accepted and recognized by the international community as a whole—that is, by a very large majority of states. See, e.g., Vienna Convention on the Law of Treaties, May 23, 1969, Art. 53, 1155 UNTS 331 [hereinafter Vienna Convention]; Restatement (Third) of The Foreign Relations Law of The United States §102, cmt. k and reporters’ note 6 (1987) [hereinafter Restatement]. The operation of fundamental norms, or jus cogens, is superior to both customary international law and treaty law. See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serbia and Montenegro)), Provisional Measures, 1993 ICJ Rep. 4, 440 (Order of Sept. 13) (Lauterpacht, J. ad hoc, sep. op.).

10 Beyond the areas of law addressed in this Note, emerging international standards respecting development merit further attention in the context of child labor. Experienced practitioners in the field of labor rights have argued that development aid is critical to combating child labor. Poverty and lack of educational and vocational opportunities are among the primary causes of exploitative practices. Linking labor standards to development aid, as distinct from trade, can be effective since such action directly affects government budgets, while trade measures affect business first. See further Steve, Charnovitz, Promoting Labor Standards , Wash. Q., Summer 1995, at 167, 177 Google Scholar.

11 Statute of the International Court of Justice [ICJ], June 26, 1945, Art. 38, TS No. 993, 3 Bevans 1179; see also Restatement, supra note 9, §102.

12 ICJ Statute, supra note 11, Art. 38(1) (b). Customary international law is the general and consistent practice of states followed with a sense of legal obligation. Restatement, supra note 9, §102(2). See also Ian, Brownlie, Principles of Public International Law 4-11 (4th ed. 1990)Google Scholar.

13 ICJ Statute, supra note 11, Art. 38(1)(a).

14 Id., Art. 38(1) (c). See further Brownlie, supra note 12, at 19; Bruno, Simma & Philip, Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles , 12 Austl. Y.B. Int’l L. 82 (1988-89)Google Scholar.

15 UN Charter, June 26, 1945. 16 General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 194 [hereinafter GATT 1947]; WTO Agreement, supra note 6.

17 Constitution of the ILO, Oct 9, 1946, Art. 1(2), 62 Stat. 3485, 15 UNTS 35. For relevant ILO instruments, see infra notes 52-77 and corresponding text.

18 See the discussion in text infra at notes 78-123.

19 Oscar, Schachter, International Law in Theory and Practice 49-55 (1991)Google Scholar.

20 E.g., Vienna Convention, supra note 9, Arts. 31, 53, 64, 71. The United States has not ratified the Convention, but the fundamental principles contained in it are considered to have attained the status of customary international law. Restatement, supra note 9, §102 cmt. k. The recent concept of peremptory norms is built upon the doctrine of customary international law and has received wide acceptance. Id. §102 reporters’ note 6.

21 Vienna Convention, supra note 9, Art. 31. The context for that interpretation includes the treaty text and preamble, related instruments, and elements extrinsic to the treaty. Regional agreements among various treaty partners can be considered to provide relevant context for interpretation of obligations of common state parties. See, e.g., Gérard, Cohen-Jonathan, Les Rapports entre la Convention européenne des Droits de l’Homme et Us autres traités conclus par les Etats Parties, in The Dynamics of The Protection of Human Rights in Europe 79 (Rick, Lawson & Matthijs de, Blois eds., 1994)Google Scholar. General rules of international law that are generally recognized as applicable between states and are not by their nature unsuitable for international organizations are also binding on the latter. Daniel, D. Bradlow & Sabine, Schlemmer-Schulte, The World Bank’s Inspection Panel: A Constructive Step in the Transformation of the International Legal Order , 54 Heidelberg J. Int’l L. 392, 405 n.77 (1994)Google Scholar (citing, inter alia, Felice Morgenstern, Legal Problems of International Organizations 32 (1986)).

22 See, e.g., North Sea Continental Shelf (FRG v. Den.; FRG v. Neth.), 1969 ICJ Rep. 3 (Feb. 29).

23 UN Charter Art. 103. See, e.g., Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 3, 114 (Orders of Apr. 14).

24 The three principal human rights with which the ILO is concerned are freedom of association, and freedom from discrimination in employment and forced labor. ILO, Committee on Legal Issues and Int’l Labour Standards, The strengthening of the ILO’s supervisory system, ILO Doc. GB.267/LILS/5, para. 16 & n.14 (1996) [hereinafter Supervisory System]. Some ILO Conventions address labor in the context of specific occupations and market sectors. Standards relevant to the elimination of exploitative child labor have developed in both areas. See infra notes 52-77 and corresponding text.

Existing ILO standards serve as a foundation for the drafting of the proposed convention specifically on extreme forms of child labor. The adoption of new standards is projected to take place in June 1999. In accordance with the ILO’s traditional double-discussion procedure, the International Labour Office will prepare a draft text for discussion, based in part on ILO member states’ responses to a questionnaire sent to governments in 1996. See generally ILO, Child Labour: Targeting the Intolerable, Report VI(1), IL Conf., 85th Sess. (1996) [hereinafter Targeting The Intolerable]; and its Annexes I (ILO Questionnaire on Child Labour) and II (Standard-setting in the ILO).

25 Targeting the Intolerable, supra note 24, Annex I, §1, question 7. The question was formulated in part on the basis of a recent ILO report on international and national law and practice. See Fourth item on the Agenda: Child labour, ILO Doc. GB.268/ESP/4, para. 9 (1997) [hereinafter Child Labour 1997]. The ILO has discussed the proposed standards in the context of two general types of child labor: (1) labor or activity contrary to fundamental human rights, such as work performed by a child in slavery; debt bondage, bonded labor or other slaverylike practices; child prostitution; or use of children in drug trafficking or production of pornography; and (2) work that exposes children to grave hazards to safety or health or prevents them from attending school normally. 1996 Governing Body Report, supra note 1, para. 40. Accord IL Conf, Resolution concerning the elimination of child labour, reprinted in Prov. Rec. No. 1, 83d Sess., at 11/35 (June 1996).

26 Targeting the Intolerable, supra note 24, Annex I, §1, question 8(a). The ILO Questionnaire on Child Labour seeks states’ opinions on whether national laws or regulations should determine the conditions under which work likely to jeopardize health, safety or morals may be performed by children from the age of 16 years in keeping with Convention No. 138, infra note 27. See Targeting the Intolerable, §1, question 8(b). Unlike an ILO Convention, an ILO Recommendation is not binding; rather, it provides guidelines for national policy and action.

Further clarification of the third category may come within a nonbinding recommendation to accompany the new convention, as exhibited by question 14, which asks whether the category should include, inter alia, work that “exposes children to physical, emotional or sexual abuse,” or “is done underground, under water, and at dangerous heights”; or work that is done “with dangerous machinery, equipment and tools,” or “in an unhealthy environment which may, for example, involve exposure to hazardous substances, agents and processes, or to extreme temperatures, noise levels, and vibrations”; or work that “is done under particularly difficult conditions such as for long hours, during the night, or without the possibility of returning home each day.” Id. §2, question 14 (in pertinent part).

27 ILO Convention (No. 138) Concerning Minimum Age for Admission to Employment, June 26, 1973, 1015 UNTS 297. See infra note 66 and corresponding text.

28 See Child Labour 1997, supra note 25, para. 9.

29 The questionnaire inquires whether such a recommendation should emphasize national programs of action that “give special attention to children under age 12” and “take account of the special problems of girls.” Targeting the Intolerable, supra note 24, Annex I, §2, questions 12(e) and (f).

30 See Child Labour 1997, supra note 25, para. 9.

31 See generally Targeting the Intolerable, supra note 24; Tenth item on the Agenda: Report of the Committee on Employment and Social Policy, Child Labour, ILO Doc. GB.268/10 (1997) [hereinafter ESP Report].

32 ESP Report, supra note 31, para. 35 (Assefa Bequele of the International Labour Office).

33 On distinguishing substantive criminal law establishing international criminal activity and adjective criminal law enabling enforcement of certain municipal criminal law where, e.g., the offensive conduct affects the interests of more than one state, see Theodor, Meron, International Criminalization of Internal Atrocities , 89 AJIL 554 (1995)Google Scholar; 1 Cherif Bassiouni, M. & Ved, Nanda, A Treatise on International Criminal Law 6-8 (1973)Google Scholar; Gerhard, O. W. Mueller & Edward, M. Wise, International Criminal Law 13 (1965)Google Scholar. See also text at note 38 infra.

34 E.g., Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, Art. 1(1), GA Res. 39/46, UN GAOR, 39th Sess., Supp. No. 51, at 197, UN Doc. A/39/51 (1985), S. TREATY Doc. No. 100-20 (1988) [hereinafter Torture Convention]; Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, Art. 2(e), (f), 1249 UNTS 13 [hereinafter Women’s Convention].

35 Treaty provisions may require legislative, administrative or other responses involving use of the criminal justice system, civil remedies such as compensation or rehabilitation, and preventive measures such as education and the use of social services. See, e.g., the discussion infra part II on forced labor and minimum age in employment; the obligation to protect children from economic exploitation and their freedom from abusive treatment; the right of children to measures of protection by family and society, as well as the state; and obligations of state parties to take measures to eliminate discrimination by private actors.

36 E.g., Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4, paras. 172, 174 (1988). See also Schachter, note 19 supra, at 341 & n.42.

37 A modern and still-debated development in international human rights law infers a binding effect on individuals even when the norms are addressed to states. This third-party or drittwirkung effect is said to impose individual duties to refrain from conduct such as prohibited discrimination or domestic violence. See Andrew, Clapham, Human Rights in the Private Sphere 91-126 (1993)Google Scholar.

38 Universal jurisdiction regarding such acts is premised on the existence of widely ratified treaties prohibiting them. See, e.g., Brownlie, supra note 12, at 305 n.41 (citing Harvard Research in International Law, 29 AJIL Spec. Supp. 569-71 (1935)). The 1956 Supplementary Slavery Convention, infra note 43, Art. 6, requires all state parties to make slavery a criminal offense under national law. Moreover, some scholars have argued that slavery and the slave trade have reached the status of a crime under international law. See Restatement, supra note 9, §404. Compare note 33 supra and corresponding text.

39 See note 25 supra and corresponding text.

40 E.g., Restatement, supra note 9, §702. Protection from slavery constitutes one of the “principles and rules concerning the basic rights of the human person,” which the International Court of justice has considered to be an obligation erga omnes. Barcelona Traction, Light & Power Co., Ltd. (Second Phase) (Belg. v. Spain), 1970 ICJ Rep. 3, 32, & 304 (Feb. 5) (Ammoun, J., sep. op.).

41 See, e.g., [1966] 2 Y.B. Int’l L. Comm’n 247-49, UN Doc. A/CN.4/SER.A/1966/Add.1.

42 Prohibitions on slavery explicitly contemplate private actor abuses as well as official acts. See, e.g., Universal Declaration of Human Rights, GA Res. 217A, Art. 4, UN Doc. A/810, at 71 (1948) [hereinafter Universal Declaration]; and the International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 8(1), (2), 999 UNTS 171 [hereinafter ICCPR]. Slavery and the slave trade in all its forms are also prohibited in noninternational armed conflict. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, Art. 4(2) (f), 1125 UNTS 609.

43 Convention to Suppress the Slave Trade and Slavery, Sept. 25,1926,46 Stat. 2183,60 LNTS 253 [hereinafter Slavery Convention]; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 18 UST 3201, 266 UNTS 3 [hereinafter Supplementary Slavery Convention]. As of 1995, 75 states were parties to the Slavery Convention, and 114 states were parties to the Supplementary Slavery Convention. International Instruments: Chart of Ratifications as at 30 June 1995, UN Doc. ST/HR/4/Rev.l2, at 11 (1995) [hereinafter UN Ratifications].

44 Slavery Convention, supra note 43, Art. 2(b).

45 Id., Art. 5. The 1926 treaty commitment led to a directive to the ILO, League of Nations Doc. A.123.1926 (on file with the archive of the League of Nations at the United Nations), which resulted in the adoption in 1930 of the Forced Labour Convention (No. 29), infra note 53. See notes 55-60 infra and corresponding text.

46 Debt bondage is defined as

the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

Supplementary Slavery Convention, supra note 43, Art. 1 (a). The prohibition is relevant today to documented cases in which debtor parents have delivered their children into bondage in attempts to satisfy creditors. See, e.g., Mark, Schapiro, Children of a Lesser God: Child Labor in Pakistan , Harper’s Bazaar, Apr. 1996, at 204 Google Scholar. ILO Convention (No. 95) on Protection of Wages (1949) requires wages to be paid regularly and prohibits methods of payment that deprive workers of the genuine possibility of terminating employment. Nearly 100 states have ratified this Convention. List of Ratifications by Convention and by Country (as at 31 December 1995), IL Conf, 83d Sess., Report III, pt. 5 (1996) [hereinafter 1996 Ratification List].

47 The treaty prohibits such delivery “by either or both of his natural parents or by his guardian.” Supplementary Slavery Convention, supra note 43, Art. 1 (d).

48 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, GA Res. 317 (IV), Dec. 2, 1949, Art. 20. As of June 30, 1995, that Convention had 70 registered parties. UN Ratifications, supra note 43, at 11. See also Women’s Convention, supra note 34, Art. 6. As of June 30, 1995, that Convention had 140 ratifications. UN Ratifications, supra, at 10.

49 The working group was established by die Economic and Social Council to supervise the application of die two Slavery Conventions. See Comm’n on Human Rights [CHR], Report on the thirtieth session, UN Doc. E/5464-E/CN.4/1154, at 7-8, 81-82 (1974). See also Supplementary Slavery Convention, supra note 43, Art. 8.

50 Programme of Action for die Elimination of Exploitative Child Labour, CHR Res. 1993/79, UN Doc. E/ CN.4/1993/122.

51 See Report of the Secretary-General on implementation of the Programme of Action for die Elimination of the Exploitation of Child Labour, UN Doc. E/CN.4/Sub.2/1996/25. The appointment of a special rapporteur is under further study at die Sub-Commission for Prevention of Discrimination and Protection of Minorities. Sub-Comm’n Res. 1996/12, UN Doc. E/CN.4/Sub.2/1996/L.ll/Add.l (1996).

52 See note 25 supra and corresponding text.

53 ILO Convention (No. 29) Concerning Forced or Compulsory Labour, June 28, 1930, 39 UNTS 55 [hereinafter Forced Labour Convention],

54 ILO Convention (No. 105) Concerning the Abolition of Forced Labour, June 25, 1957, 320 UNTS 291 [hereinafter Abolition of Forced Labour Convention]. The United States is a party to this Convention. In discussing which of its many conventions could be categorized as fundamental human rights conventions, the ILO considered placing Convention No. 138 on minimum age on the short list of fundamental human rights conventions but did not do so. Conventions that were included on die short list are relevant to terms and conditions of exploitative child labor but do not address the issue directly: freedom of association, die right to organize and to collective bargaining (Convention Nos. 87 and 98), equal remuneration, and discrimination in employment and occupation (Convention Nos. 100 and 111). ILO, Committee on Legal Issues and Int’l Labor Standards, Standard Setting Policy: The promotion of basic human rights Conventions, ILO Doc. GB.262/LILS/4, para. 3 (1995).

55 1996 Governing Body Report, supra note 1, para. 32. See Hector Bartolomei de la, Cruz, Geraldo, von Potobsky & Lee, Swepston, The International Labor Organization: The International Standards System and Basic Human Rights 143-48 (1996)Google Scholar.

56 Forced Labour Convention, supra note 53, Art. 2.

57 General Survey of the Report Relating to the Forced Labour Convention, 1930 (No. 29), and die Abolition of Forced Labour Convention, 1957 (No. 105), IL Conf., 65th Sess., Report III, pt. 4B, para. 7 (1979) [hereinafter 1979 General Survey] (“[transitional] provisions . . . are hardly ever invoked now as a justification for retaining forced or compulsory labour”).

58 Forced Labour Convention, supra note 53, Art. 11(1) (interpreted according to the rule expresio unius est exclusio alterius).

59 Id., Art. 26.

60 The exploitative forms of child labor reviewed by the International Labour Conference have included bonded child labor, domestic-slave-like forms of child labor, and child sexual exploitation. See, e.g., Reports of the Committee of Experts on the Application of Conventions and Recommendations, IL Conf, 79th Sess., Report III, pt. 4A (1992); 80th Sess., Report III, pt. 4A (1993); 81st Sess., Report III, pt. 4A (1994) (reviewing Convention No. 29). See also General Survey of the Committee of Experts on the Reports Concerning the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105), IL Conf., 38th Sess., Report III, pt. 4, para. 26 (1968) [hereinafter 1968 General Survey]; and 1979 General Survey, supra note 57, pt. 4B, para. 41 (the latter interpreting Convention No. 105 on an issue involving national development).

61 1996 Ratification List, supra note 46.

62 Abolition of Forced Labour Convention, supra note 54, Art. 1 (b). The provision has been applied to condemn certain child labor practices. 1968 General Survey, supra note 60, pt. 4, para. 43 (citing travaux préparatoires of 1957 Convention).

63 See, e.g., the instruments cited at notes 91-106 infra, and the regional instruments cited at notes 107- 14 infra. The acceptance of the forced labor prohibition as a fundamental norm of universally binding character has led to an ILO proposal for a constitutionally based supervisory system on fundamental human rights relating to labor, including forced labor of children. See, e.g., Report of the Director-General, The ILO, Standard Setting and Globalization, IL Conf., 85th Sess. (1997) [hereinafter Standard Setting and Globalization) .

64 See note 25 supra and corresponding text.

65 See, e.g., 1996 Governing Body Report, supra note 1, para. 29.

66 Convention No. 138, supra note 27, revised 10 earlier conventions on admission to employment, 4 involving maritime work and 6 in other sectors. Minimum Age, General Survey by the Committee of Experts on the Application of Conventions and Recommendations, IL Conf, 67th Sess. (1981) [hereinafter 1981 Minimum Age Survey]. Recommendation (No. 146) provides guidelines for national action under the Convention. The Convention allows for developing countries to specify a one-year lower minimum age (14) for a temporary period.

67 1996 Ratification List, supra note 46.

68 ILO, supra note 3, para. 109. (Convention No. 138 does not set priorities for national action and possibilities of temporarily excluding certain activities do not adequately reflect the concern to target most intolerable forms of child labor.)

69 See Targeting the Intolerable, supra note 24, at 23-29; Annex 1: ILO Conventions and Recommendations for the protection of children and young persons, in 10 ILO, Conditions of Work Digest 78-79 (1991). On the content of the many conventions relating to the work of children or young persons, see 1981 Minimum Age Survey, supra note 66, paras. 12-45. Enforcement provisions typically include requiring employers to keep registers of everyone under 18 years of age, requiring labor inspections, denning persons responsible for labor compliance, and issuing licenses for informal sector work of young persons. Three standard exclusions involve vocational training, family undertakings, and nonindustrial employment, including public performances with certain conditions. Id., paras. 18-20. The exclusions exempt from minimum age scrutiny many of the intolerable forms of child labor that fall outside the forced labor Conventions. See text at note 65 supra.

70 See note 65 supra and corresponding text.

71 See notes 67-68 supra.

72 See note 24 supra and corresponding text. The ILO already operates an International Programme on the Elimination of Child Labor (IPEC), which has provided technical assistance to 25 countries to help bring national laws and practices in line with international labor standards. Recent ILO Initiatives on Child Labor, U.S. Dep’t of Labor, supra note 2 (written testimony).

73 Standard Setting and Globalization, supra note 63.

74 In 1996 the Committee on Legal Issues and International Labour Standards, which advises the Governing Body, discussed the possibility of adopting new supervisory procedures concerning forced labor and discrimination. Supervisory System, supra note 24.

75 Id., paras. 17-19, 22-23. The Governing Body established the Fact-finding and Conciliation Commission in 1951 with the approval of the ILO Conference and the UN Economic and Social Council as a means of promoting the aims and objectives of the ILO in its revised Constitution. Over some states’ objections, a distinction was made between promotion of the organization’s constitutional principles through mechanisms applicable to all member states, and enforcement of international labor standards by way of ratified conventions. See generally id.

76 The Governing Body set up the working party in 1993. See ILO Doc. GB.260/205 (1994), cited in The Social Dimensions of the Liberalization of World Trade, ILO Doc. GB.261/WP/SLD/1 (1994). The working party is open to all members of the Governing Body.

77 See Statement by the Chairperson on the Future Programme of Work of the Working Party on the Social Dimensions of the Liberalization of International Trade, ILO Doc. GB.265/WP/SDL/D.1, para. 2 (1996) (con taining questionnaire on impact of globalization) (on file with the authors). The questionnaire “tries to evaluate the directions that national and international action might take to reconcile [the comparative development of export sectors and the rest of the economy] with the attainment of ILO social objectives.” Id., introduction.

78 See note 25 supra and corresponding text.

79 E.g., Restatement, supra note 9, §702; Schachter, supra note 19, at 338.

80 E:g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (torture as violation of customary international law); Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980), aff’d on other grounds, 654 F.2d 1382 (10th Cir. 1981) (arbitrary detention as violation of customary international law); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1985) (cruel treatment a violation of the law of nations). See also United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 42 (May 24) (wrongful deprivation of freedom as incompatible with UN Charter and fundamental principles in Universal Declaration).

81 Schachter, supra note 19, at 343.

82 As a result of the human rights mandate of the UN Charter, about 200 UN human rights instruments are currently in force. UN, The United Nations and Human Rights, 1945-1995 (UN Blue Books Series, Vol. 7, 1995). The joint activities encouraged under Article 56, see text at note 84 infra, have resulted in, among other things, activities of regional institutions to promote and protect human rights. Id., para. 26. Even legally binding decisions on human rights are possible under the Charter, including decisions of the Security Council under Chapter VII and decisions of the International Court of Justice under Article 94. Id., para. 27. On the customary status of UN human rights Charter obligations, see, e.g., Schachter, supra note 19, at 345.

83 UN Charter Art. 55(a), (c). See also id., Art. 1(3).

84 Id., Art. 56.

85 Universal Declaration, supra note 42.

86 Aldiough not a treaty, the Universal Declaration may be regarded as an authoritative statement of the content of the human rights provisions (Arts. 55 and 56) of the UN Charter, a binding treaty commitment. See, e.g., United States Diplomatic and Consular Staff in Tehran, 1980 ICJ Rep. at 42. There is an emerging consensus among international law scholars that at least some of the principal rights proclaimed in the Declaration represent norms that have acquired the status of customary international law. See, e.g., Thomas, Buergenthal, International Human Rights Law and Institutions: Accomplishments and Prospects , 63 Wash. L. Rev. 1, 9 (1988)Google Scholar. See also Blaine, Sloan, General Assembly Resolutions Revisited (Forty Years Later) , 58 Brit. Y.B. Int’l L. 39, 88 & n.255 (1987)Google Scholar. On the widespread implementation of rights under the Declaration in domestic law, see, e.g., Hurst, Hannum, The Status of the Universal Declaration of Human Rights in National and International Law , 25 Ga. J. Int’l L. 287 (1995-96)Google Scholar.

87 Universal Declaration, supra note 42, Arts. 4 (slavery), 5 (torture).

88 Id., Art. 25(1), (2). Of the rights noted, slavery by its terms directly holds private actors responsible. On private action regarding the other provisions, see notes 34-38 supra and corresponding text.

89 Universal Declaration, supra note 42, Art. 22.

90 On the public/private distinction in the context of norms relating to child labor, see notes 34-38 supra and corresponding text.

91 As of July 14, 1997, the Children’s Convention had been ratified by 191 parties. The United States has signed but not ratified the treaty. See United Nations Treaty data base <http://www.un.org/Depts/Treaty> (July 18, 1997).

92 Children’s Convention, supra note l, Art. 32(1). State parties are obliged to take “legislative, administrative, social and educational measures” to implement protection of children from economic exploitation, including through labor laws relating to minimum age and conditions of work. Id., Art. 32(2) (a), (b).

93 See, e.g., id., Arts. 33, 34, 35, 36, 39.

94 See, e.g., id., Arts. 6 (ensuring child’s development to maximum extent possible); 19 (protection from all forms of physical or mental violence, abuse, maltreatment or exploitation); 24 (right to highest attainable standard of health); 26 (right to social security); 27 (right to adequate standard of living); 28 (right to education for development of personality, talents and abilities) and 37 (freedom from torture, or other cruel, inhuman or degrading treatment). State parties are to ensure treaty rights to each child within their jurisdiction without discrimination. Id., Art. 2(1). Implementation of the Convention’s economic, social and cultural rights is to be undertaken “to the maximum extent of . . . available resources and, where needed, within the framework of international co-operation.” Id., Art. 4. On state responsibility and private action relevant to various provisions, see supra notes 34-38 and corresponding text.

95 E.g., Recommendations concerning economic exploitation of children, Report of the Committee on the Rights of the Child, UN GAOR, 49th Sess., Supp. No. 41, para. 572(b), UN Doc. A/49/41 (1994).

96 See, e.g., Committee on the Rights of the Child, Report on the Tenth Session, UN Doc. CRC/C/46, para. 194 (1995).

97 The Committee on the Rights of the Child collaborated with the ILO on a 1992 Asian Regional Seminar on Children in Bondage, held in Pakistan. See ILO Committee on Employment and Social Policy, Child Labour, ILO Doc. GB.264/ESP/1 (1995). UNICEF Exec. Bd. Dec. 1990/6 includes, among children in especially difficult circumstances, “youth trapped in the bondage of prostitution, drugs and exploitative work conditions.” UNICEF’s programs for such children are increasingly oriented toward rights protection, as well as assistance.

98 E.g., ICCPR, supra note 42, Art. 24; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, Art. 10, 993 UNTS 3 [hereinafter ICESCR].

99 ICCPR, supra note 42, Art. 24(1).

100 General Comments adopted by the Human Rights Committee, No. 17, 1989, paras. 1, 2, 3, reprinted in Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1, at 23 (1994) (emphasis supplied). Although the Committee’s general comments are not binding interpretations of the Covenant, they provide significant guidance as to the meaning of its provisions.

101 E.g., ICCPR, supra note 42, Arts. 2, 3, 7, 8, 9, 11, 22, 23. Under Article 2(1), state parties undertake “to ensure . . . the rights recognized in the present Covenant” (emphasis added). The United States is a party to the ICCPR, with specific reservations, understandings, and declarations on, inter alia, Articles 2, 7 and 9.

102 E.g., ICESCR, supra note 98, Arts. 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14.

103 See, e.g., Torture Convention, supra note 34, Arts. 1(1), 2 (prevention of torture by state agents or private agents at instigation or with consent or acquiescence of a public official) and 3 (non-refoulement where substantial grounds for believing person might be tortured). The United States is a party to the Convention and has enacted legislation to implement the criminal obligations of Article 4.

104 Women’s Convention, supra note 34, Art. 2(e).

105 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, Art. 2(d), 660 UNTS 195 [hereinafter Race Convention]. The United States is a party to the Convention.

106 As of 1996, ratification of the various treaties stood at 135 (ICCPR), 135 (ICESCR), 99 (Torture Convention), 154 (Women’s Convention) and 148 (Race Convention). See UN Treaty data base <http://www.un.org/Depts/Treaty>.

107 The European Convention provides that no one shall be held in slavery or servitude, or shall be required to perform forced or compulsory labor, with exceptions not relevant here. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 4, 213 UNTS 221, reprinted in Council of Europe, Human Rights in International Law: Basic Texts 113 (1991) [hereinafter Council of Europe Texts]. State parties to die European Social Charter recognize as binding various provisions explicitly addressing die right of children and young persons to protection relating to employment, including a minimum age of admission to employment (15 years). European Social Charter, Oct. 18, 1961, pt. II, Art. 7, Council of Europe Texts, supra, at 154. On related state practice, see Council of Europe, European Social Charter: Committee of Independent Experts, Conclusions, No. XIII-2 (1995); 25 Years: European Social Charter (A. Ph. C M. Jaspers & L. Betten eds., 1987); David Harris, The European Social Charter 80-92 (1984). Notably, state parties to the Charter are obliged to protect foreigners under Articles 1-17 “only in so far as they are nationals of other Contracting Parties.” Appendix to the Social Charter, Scope of the Social Charter, Art. 1, Council of Europe Texts, supra, at 167. On the European Union and child labor, see infra note 236.

108 The OAS Charter recognizes “the close interdependence between foreign trade and economic and social development” and declares principles and mechanisms for achieving “a just social order, along with economic development.” Oas Charter Arts. 38, 44 (as amended).

109 The American Declaration recognizes the right of children to special protection, and the right of every person who works to “receive such remuneration as will . . . assure him a [suitable] standard of living.” American Declaration on Rights and Duties of Man, adopted by the Ninth International Conference of American States, reprinted in 1 The Inter-American System, pt. II, at 5 (F. V. Garcia-Amador ed., 1983). The American Declaration is widely considered to reflect OAS Charter commitments through die Protocol of Buenos Aires, Feb. 27, 1967, 21 UST 607.

110 The American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123 [hereinafter ACHR], to which die United States is a signatory but not a party, explicitly prohibits slavery in all its forms, and forced or compulsory labor. Id., Art. 6. The Protocol of San Salvador prohibits work that jeopardizes health, safety or morals, for persons under 18 years of age. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, Art. 7, OAS TS No. 69, 28 ILM 156 (1989) (not yet in force).

111 On the practice of the ACHR, see Thomas, Buergenthal, The Inter-American System for the Protection of Human Rights , in 2 Human Rights in International Law: Legal and Policy Issues 439, 479-86 (Theodor, Meron ed., 1984)Google Scholar. In addition, the Inter-American Council for Integral Development (GDI) could launch a technical assistance program modeled on that of the ILO’s IPEC. For the CIDI’s structural mandate, see OAS Charter Arts. 92-97 (as amended).

112 African Charter on Human and Peoples’ Rights, June 27, 1981, Arts. 15, 18, 21 ILM 58 (1982). As of 1996, 50 of the 53 member states of the Organization of African Unity had ratified the Charter.

113 Charter on the Rights and Welfare of the African Child, July 11, 1990, Art. 16(1), OAU Doc. CAB/LEG/ 24.9/49 (1990).

114 Id., Art. 31 (duty to work for the cohesion of the family).

115 E.g., Restatement, supra note 9, §102 cmt. b. Customary law is defined in note 12 supra. “General principles of law” refers to principles that are recognized and applied in the major national legal systems of the world, as well as fundamental principles that underlie all legal systems. Id. §102 cmt. l.

116 World Declaration on the Survival, Protection and Development of Children, adopted at the World Summit for Children, Sept. 30, 1990, UN Doc. E/CN.4/1991/59, Annex II, para. 23.

117 Copenhagen Declaration on Social Development, Mar. 12, 1995, UN World Summit for Social Development, Annex I, at 5, para. 41, UN Doc. A/CONF.166/9 (1995) (commitment to “promote respect for relevant ILO Conventions, including those on the prohibition of forced and child labour”).

118 Vienna Declaration and Programme of Action, adopted by World Conference on Human Rights, June 25, 1993, pt. I, para. 21, UN Doc. A/CONF.157/23 (1993), 32 ILM 1661 (1993) (calling for strengthening of defense and protection of economically exploited children).

119 United Nations Fourth World Conference on Women, Beijing Declaration and Platform for Action, UN Doc. A/CONF.177/20 (1995), 35 ILM 401 (1996).

120 See, e.g., Summit of the Americas Declaration of Principles and Plan of Action, Partnership for Development and Prosperity: Democracy, Free Trade and Sustainable Development in the Americas, Dec. 11, 1994, reprinted in Building a Partnership for Prosperity, White House Report on The Summit of The Americas 63-91 (1995).

121 E.g., ILO Doc. GB.264/5 (1995) (ILO action to be taken regarding Declaration and Programme of Action adopted by the World Summit for Development).

122 The United Nations Children’s Educational Fund promotes child survival, development and protection through more than 130 country-level cooperative programs. See note 97 supra.

123 The committee, an interagency mechanism consisting of the heads of all UN departments and agencies in the Secretariat, has established interagency task forces to review implementation of commitments made at world conferences, including task forces on employment and sustainable livelihood, and enabling social development. The General Assembly has endorsed ECOSOC’s decision to devote its coordination segment in 1998 to reviewing the UN system’s implementation of the world conferences. Briefing by Ernst Schulpke, Austrian Perm. Representative to United Nations, New York City (Dec. 12, 1996) (discussing same-day GA endorsement of ECOSOC Res. 1996/36 (July 26, 1996)).

124 See the discussion in part II supra.

125 See notes 20-23 and 82-84 supra and corresponding text. Vienna Convention, supra note 9, Art. 31 (3) (c), refers to rules of international law that are extrinsic to the treaty under interpretation. Accord, WTO Agreement, supra note 6, Annex 2, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 3(2), 33 ILM 1226 (1994) [hereinafter WTO Dispute Settlement Rules], noted in United States—Standards for Reformulated and Conventional Gasoline, Appellate Body Report, May 20, 1996, 35 ILM 603, 621 (1996) [hereinafter Appellate Body Report].

126 Appellate Body Report, supra note 125, 35 ILM at 621.

127 The conventional framework for the World Trade Organization includes the WTO Agreement and associated legal instruments, which are multilateral and binding on all members, and the Plurilateral Agreements, such as the Agreement on Government Procurement, which only bind the members party to those particular agreements. WTO Agreement, supra note 6, Art. 11(2), (3).

128 International Convention for the Abolition of Import and Export Restrictions, Nov. 8, 1927, 46 Stat. 2461, League of Nations Doc. C.I.A.P. 1927 [hereinafter Import-Export Convention]. See also infra note 214.

129 See John H. Jackson, World Trade and The Law of GATT §2.2 (1969). Congressional authority for the negotiation of these bilateral trade agreements was the Reciprocal Trade Agreements Act of 1934, Pub. L. No. 73-316, 48 Stat. 943, extensions of which are considered to be the authority supporting the provisional application of GATT in 1947. Provisions of these bilateral trade agreements formed the basis for the various clauses of GATT. Id.

130 U.S. Dep’t of State, Proposals for Expansion of World Trade and Employment (1945).

131 As domestic support for an International Trade Organization ebbed, the United States elected not to send the ITO Charter to the Senate for advice and consent, effectively signaling the impracticability of establishing such an organization without U.S. participation. See Jackson, supra note 129, §2.5 (citing U.S. Dep’t State Press Release, Dec. 6, 1950, 23 DEP’T ST. BULL. 977 (1950)).

132 ESC Res. 13, UN ESCOR, 1st Sess., UN Doc. E/22 (1946).

133 See Suggested Charter for an International Trade Organization of the United Nations, reprinted in Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, GATT Doc. E/PC/T/33, Annexure 11, Art. 29, at 59 (1946) [hereinafter U.S. Draft Charter].

134 For more details on the preparatory conferences leading to the GATT in 1947, and the relationship of the ITO drafting history to interpretation of GATT, see generally Jackson, supra note 129, §§2.3, 2.4. GATT initially conceived as part of a broader structure addressing trade and labor issues, including the ITO general principles regarding employment practices and labor. See GATT Art. XXIX (1). GATT was implemented under the Protocol of Provisional Application of the General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 308. Under that Protocol, inconsistent preexisting national legislation was permitted to remain in force. The GATT framework evolved through a series of ministerial conferences that culminated in the Uruguay Round, 1986-94. See William, B. T. Mock, Game Theory, Signaling, and International Legal Relations , 26 Geo. Wash. J. Intl L. & Econ. 34, 51 n.64 (1992)Google Scholar.

135 Marrakesh Ministerial Declaration, Apr. 15, 1994, 33 ILM 1263 (1994).

136 Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 ILM 1141 (1994); WTO Agreement, supra note 6. The WTO Agreement includes four annexes. WTO Agreement, Art. 11(2). Annexes 1, 2 and 3 are referred to as “Multilateral Trade Agreements” and are binding on all WTO members. Id. The three parts of the first annex include, among other provisions, GATT 1994, which incorporates the original GATT (GATT 1947), as modified, corrected and rectified prior to the date of entry into force of the WTO Agreement; the Agreement on Technical Barriers to Trade; the Agreement on Implementation of Article VI of GATT 1994; and the Agreement on Subsidies and Countervailing Measures (Annex 1A); the General Agreement on Trade in Services (Annex IB); and the Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C). Annex 2 contains the Understanding on Rules and Procedures Governing the Settlement of Disputes, and Annex 3 contains the Trade Policy Review Mechanism. Annex 4 contains four Plurilateral Trade Agreements, binding only on the members that have accepted them. WTO. Agreement, Art. 11(3). This Note uses the term “GATT” to refer to GATT 1994, unless otherwise indicated.

137 See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994).

138 In addition, 28 countries are currently on die list requesting accession to the WTO, including the People’s Republic of China. Singapore Ministerial Declaration, supra note 7, para. 8. See WTO Membership list <http://www.wto.org>.

139 MFN treatment under GATT is automatic and unconditional for all contracting parties. Under Article I, “any advantage, favour, privilege or immunity granted by any [GATT] 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 die territories of all other Contracting Parties. ‘‘ GATT Art. 1(1).

140 National treatment permits the evenhanded regulation of both domestic and imported products, requiring that the products of any contracting party’s territory’ ‘imported into the territory of any other Contracting Party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.” GATT Art. 111(4). An unadopted panel decision held that “national treatment” applies to regulations when they concern characteristics inherent in the imported product, rather than policies or practices that do not relate to the product, such as its method of production. United States— Restrictions on Imports of Tuna, June 1994, 33 ILM 839, paras. 5.8, 5.9 (1994) (unadopted) [hereinafter Tuna II]. Unlike die new WTO Dispute Settlement Procedures, GATT panel decisions required consensus for adoption. See WTO Dispute Settlement Rules, supra note 125, and note 146 infra.

141 Article XI essentially works to prohibit the use of quotas and applies to both imports and exports. See GATT Art. XI(1).

142 GATT Arts. VI, XVI; Agreement on Implementation of Article VI of GATT 1994; Agreement on Subsidies and Countervailing Measures. See infra text at note 149.

143 GATT Art. XIX. See infra text at note 161.

144 GATT Art. XXIII; WTO Dispute Settlement Rules, supra note 125, Art. 26. See infra text at note 199.

145 GATT Art. XX. See infra text at note 163.

146 See WTO Dispute Settlement Rules, supra note 125, App. 1 (listing agreements covered by these rules). 147 Article 3(8) of the WTO Dispute Resolution Rules, supra note 125, provides that the new rules expand on prior GATT dispute resolution practice under Articles XXII and XXIII of GATT 1947. If consultations on a measure affecting operation of an agreement fail to settle a dispute, a panel can be formed at the request of a complaining party. Id., Arts. 6-8. Following consideration of the evidence, see id., Art. 12, the panel issues a report, id., Art. 15, which is adopted unless one of the parties appeals to the Appellate Body, id., Art. 17(1), or the Dispute Settlement Body decides by consensus not to adopt the report. Id., Art. 16(4). Appellate Body decisions are adopted and accepted by the parties unless there is consensus among the members not to adopt them. Id., Art. 17{14). If a member fails to conform its actions to the recommendation of a panel or the Appellate Body, id., Art. 19(1), compensation may be paid as a temporary measure, id., Art. 22(1). Where the issue arises under the nullification and impairment section of Article XXIII(l) (b) of GATT 1994, compensation may be part of a final settlement, id., Art. 26(1) (d); or, if compensation cannot be agreed upon, the party aggrieved may request authorization to suspend application of concessions to the member concerned, id., Art. 22(2). For more on nullification and impairment, see text infra at note 199.

In the United States, the Uruguay Round Agreements Act requires specific procedures, including consultation with Congress, before any domestic regulation may be altered to conform to a WTO panel or Appellate Body decision. See 19 U.S.C. §3533(g)(l) (1994). See also William, J. Aceves, Lost Sovereignty? The Implications of the Uruguay Round Agreements , 19 Fordham Int’l L.J.. 427, (1995)Google Scholar.

148 Members are urged to exercise restraint in raising matters under the dispute settlement procedures involving least-developed country members. Dispute Settlement Rules, supra note 125, Art. 24.

149 Agreement on Subsidies and Countervailing Measures and Agreement on Implementation of Article VI of GATT 1994, supra note 136. The U.S. Department of Commerce is revising domestic rules on antidumping and countervailing duties to conform to the Uruguay Round Agreements Act. See Antidumping Duties; Countervailing Duties, 61 Fed. Reg. 7308 (1996) (to be codified at 19 C.F.R. pts. 351, 353, 355) (proposed Feb. 27, 1996).

150 “Social dumping” is the practice of exploiting prison or sweated labor to enable a product to be sold at a price lower than it would command in accordance with a regulated wage structure. See Jackson, supra note 129, §16.02. “Sweated labor” can refer to various forms of forced labor, including child labor. 151 Dumping is defined in Agreement on Implementation of Article VI of the GATT 1994, supra note 136, Art. 2.1.

152 See Organisation for Economic Co-operation and Development, Trade, Employment and Labour Standards: A Study of Core Workers’ Rights and International Trade, para. 292, OECD Doc. COM/ DEELSA/TD(96)8/FINAL [hereinafter OECD Report).

153 Initiation of an investigation of alleged dumping involves showing evidence of dumping, injury or threatened injury to a domestic industry, and a causal link between the dumped imports and the alleged injury. Agreement on Implementation of Article VI of GATT 1994, supra note 136, Art. 5.2.

154 Id., Art. 15.

155 Secretariat Note on Article 17 (Anti-Dumping and Countervailing Duties), GATT Doc. E/PC/T/W/ 97 (1947).

156 Working Party on Technical Articles, GATT Doc. E/PC/T/WP.l/SR/8, at 4 (1947).

157 Id. at 5.

158 See, e.g., Working Party on Technical Articles, GATT Doc. E/PC/T/103 (1947); Draft Charter, Articles 16-23 and 37, GATT Doc. E/PC/T/142, at 5 (1947); GATT Doc. E/PC/T/180, at 73 (1947).

159 Agreement on Subsidies and Countervailing Measures, supra note 136, Art. 1.1 (i).

160 Id, Art. 2. Three classes of subsidies are included: prohibited subsidies, actionable subsidies and nonactionable subsidies (such as government research grants). Id., Arts. 3, 5, 8.

Exceptions and graduations are provided for developing countries. See id., Art. 27. Article 27.2 provides that developing country members of the WTO listed in Annex VII are not subject to the Agreement’s regulations as to prohibited subsidies. Annex VII defines developing countries as all those countries designated as least developed by the United Nations, as well as WTO members whose GNP per capita has not yet reached $1,000 per annum.

161 GATT Art. XIX(l)(a). The party asserting threat to a domestic industry must first seek consultations with the exporting countries. If no agreement is reached and the safeguard action is applied, the affected parties may take compensatory concessions. Id., Art. XIX(3) (a).

162 Agreement on Safeguards, WTO Agreement, supra note 6, Annex 1A, Art. 9.

163 Appellate Body Report, supra note 125, 35 ILM at 626.

164 GATT Art XX chapeau.

165 Tuna II, supra note 140. Unadopted panel reports are not considered to be binding authority because they were not endorsed by GATT contracting parties or the WTO, but the underlying legal reasoning may be treated as persuasive by a subsequent panel. See Japan—Taxes on Alcoholic Beverages, July 11, 1996, 1996 GATTPD Lexis 2, at *365.

166 Tuna II, supra note 140, para. 5.31.

167 Id., para. 5.33.

168 Id., para. 5.16. The panel further stated that U.S. policy to protect dolphins in international waters through the exercise of jurisdiction over U.S. nationals and vessels was permissible under Article XX (b) and general international law. Id., paras. 5.33, 5.31.

169 Id., paras. 5.38, 5.39. A trade measure is “necessary” if no alternative means are reasonably available that are consistent with GATT obligations, and if it is the least inconsistent measure reasonably available to the contracting party to achieve its policy objectives. See, e.g., WTO Panel, United States—Standards for Reformulated and Conventional Gasoline, Jan. 29, 1996, 35 ILM 274, 296-97, para. 6.24 (1996).

170 Indeed, textual support for an expansive jurisdictional reading of Article XX was expressed by certain delegates in drafting the 1996 Report of the Committee on Trade and Environment (CTE). CTE Report, WTO Doc. PRESS/TE 041, para. 7 (1996) [hereinafter CTE Report].

171 See text supra at notes 39-114.

172 Similarly, the WTO Agreement on Technical Barriers to Trade, supra note 136, Art. 2.2, provides that technical regulations may be utilized if they are no more restrictive of trade than necessary to fulfill a legitimate objective, such as the “protection of human health or safety.”

173 The Appellate Body noted that the chapeau focuses on the manner in which the questioned measure is applied, rather than the measure itself. Appellate Body Report, supra note 125, 35 ILM at 626.

174 The Appellate Body stated that, although these considerations are interrelated, the “fundamental theme” is the avoidance of abuse or illegitimate use of the exceptions. Id. at 629.

175 Appellate Body Report, supra note 125.

176 Id., 35 ILM at 623.

177 Id.

178 U.S. Draft Charter, supra note 133.

179 Id., Art. 32(h). Unlike other provisions of the general exceptions article, no debate about this clause was documented, and it was adopted by the Preparatory Committee without comment. See GATT Doc. E/PC/T/ C.II/56, at 4, 60 (1946).

180 Under GATT Article XX, “nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: . . . (e) relating to the products of prison labour.”

181 The exception to the Import-Export Convention, supra note 128, stated that” [prohibitions or restrictions applying to prison made goods are not within the scope of the Convention.” Protocol to the Import-Export Convention, Nov. 8, 1927, §VI, 3 Bevans 665, 668.

182 Letter of Ratification from President Herbert Hoover, to the League of Nations (Sept. 20, 1929) (on file with the Library of the United Nations, League of Nations Archives). The United States withdrew from the Convention and Protocol in 1933.

183 U.S. Dept of State, Pub. NO. 2983, Analysis of The General Agreement on Tariffs and Trade 203 (1947). Indeed, after the demise of the Import-Export Convention, a number of states entered into bilateral trade agreements, to many of which the United States was a party pursuant to the Reciprocal Trade Agreements Act of 1934. See supra note 129.

184 The European Parliament suggested unsuccessfully in 1994 that Article XX (e) should be expanded by amendment to include child labor. OECD Report, supra note 152, para. 288.

185 Cf. GATT Art. XX(a), (b), (j). For further discussion of the term “necessary” and its interpretation, see supra note 169. In noting the differing formulations, the WTO Appellate Body stated that “[i]t does not seem reasonable to suppose that the WTO Members intended to require, in respect of each and every category, the same kind or degree of connection or relationship between the measure under appraisal and the state interest or policy sought to be promoted or realized.” Appellate Body Report, supra note 125, 35 ILM at 622.

186 United States—Taxes on Automobiles, Oct. 11, 1994, 33 ILM 1397, 1456 (1994).

187 Id, para. 5.63.

188 Appellate Body Report, supra note 125.

189 Id, 35 ILM at 622.

190 Id. at 623. The ruling pertained to an issue under GATT Article XX(g) involving restrictions “relating to the conservation of exhaustible natural resources.” The Appellate Body applied the “plain meaning” doctrine of Article 31 of the Vienna Convention, supra note 9. The Appellate Body cited the Vienna Convention as customary international law, stating that the GATT should not be read “in clinical isolation from public international law.” Appellate Body Report, supra note 125, 35 ILM at 621.

191 Tuna II, supra note 140, para. 4.34. See also CTE Report, supra note 170, para. 24.

192 See supra note 177 and corresponding text.

193 Id.

194 Effective cooperation could consist of U.S. support for multilateral programs in the exporting producers’ countries, run by the ILO or UNICEF, .see text at notes 97 and 122 supra, or support for tripartite understandings, exemplified recently by the Memorandum of Understanding signed in July 1995 between the Bangladesh Garment Manufacturers and Exporters Association, UNICEF, and the ILO to eliminate child labor in the garment industry. U.S. Dept of State, Human Rights Country Reports 1428 (1996).

195 GATT Article XX provides an exception, subject to the limitations in the chapeau, for measures “(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the Contracting Parties and not disapproved by them or which is itself so submitted and not so disapproved.”

196 U.S. Draft Charter, supra note 133, ch. IV. See also World Trade Organization, Guide to GATT Law and Practice: Analytical Index 587-91 (6th ed. 1995) [hereinafter Analytical Index].

197 These agreements have dealt with cocoa, tin, sugar and natural rubber. Jorge, Perez-Lopez, Conditioning Trade on Foreign Labor Law: The U.S. Approach , 9 Comp. Lab. L. 253, 257 (1988)Google Scholar.

198 As of 1995, no commodity agreement had been formally submitted to the WTO members for approval or acquiescence. Analytical Index, supra note 196, at 591.

199 See WTO Dispute Settlement Rules, supra note 125, Art. 3(1).

200 Under id., Art. 3(8), “where there is an infringement of the obligations assumed under a covered agreement, die action is considered prima facie to constitute a case of nullification or impairment,” meaning that “there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.”

201 GATT Art. XXIII( l ) (b).

202 Id., Art. XXIII(l)(c).

203 In these circumstances, a dispute settlement panel or the Appellate Body considering the claim is limited to issuing nonbinding recommendations concerning mutual settlement, including the payment of compensation. WTO Dispute Settlement Rules, supra note 125, Arts. 26(1), 22.

Least-developed country members are subject to special procedures regarding the utilization of the WTO dispute settlement mechanisms for claims of nullification and impairment. Id., Art. 24(1); see also note 148 supra and corresponding text.

204 Article VII of the Charter of the International Trade Organization dealt with labor standards. See OECD Report, supra note 152, para. 303.

205 U.S. Commission on Foreign Economic Policy, Staff Papers 437-38 (1954).

206 Id. at 438. See also Perez-Lopez, supra note 197, at 257. Assistant Secretary of State Waugh subsequently reiterated this interpretation of Article XXIII to the contracting parties in September 1953. Id.

207 Respect for workers’ rights was among the objectives mandated by Congress in negotiating the Uruguay Round agreements. The United States and others failed to get these issues incorporated into the WTO Agreement, but the Clinton administration stated its intention to continue efforts to place international labor standards on the WTO agenda. H.R. 5110, 103d Cong., 2d Sess. 1142 (1994) (presidential transmittal of Uruguay Round Agreements, implementing bill, and supporting documentation). The United States continued to advance core workers’ rights at the Singapore Ministerial Conference in December 1996, without success. See supra note 7.

208 WTO Agreement, supra note 6, Art. XIII.

209 See Analytical Index, supra note 196, at 1034-37 (charting continuing and former invocations of Art XXXV).

210 See Singapore Ministerial Declaration, supra note 7. Twenty-eight countries are currently requesting accession to the WTO, including the People’s Republic of China. Id., para. 8. In the United States, an amendment to section 1106 of the Omnibus Trade Act of 1988 could be considered so as to extend that statute’s terms from state trading enterprises to state action on child labor in the export sector.

211 Agreement on Technical Barriers to Trade, supra note 136, Annex III, Code of Good Practice for the Preparation, Adoption and Application of Standards.

212 CTE Report, supra note 170, para. 184.

213 The three general sources of international law—customary law, treaties and general principles of the major legal systems—are accepted as a part of U.S. law. U.S. Const. Art. VI, cl. 2; The Paquete Habana, 175 U.S. 677, 700 (1900); First Nat’l City Bank v. Banco para el Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983). Where fairly possible, a U.S. statute is to be construed so as not to conflict with international law or an international agreement of the United States. Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64,118 (1804). If a treaty and a federal statute conflict, the more recent prevails. Reid v. Covert, 354 U.S. 1, 18 n.34 (1957). If a customary norm and a federal statute or an executive act conflict, courts generally have given effect to the legislative or executive act, regardless of which came first. See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert, denied sub nom. Ferrer-Mazorra v. Meese, 479 U.S. 889 (1986). However, it has not been authoritatively determined whether a rule of inconsistent customary international law that developed after an earlier statute should be given effect. Restatement, supra note 9, §115(d).

214 Section 307 denies entry and import into the United States of “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions.” Tariff Act of 1930, 19 U.S.C. §1307 (1994). Section 307 of the Smoot-Hawley Tariff Act, as it is commonly called, expanded and modified the restriction on imports of goods manufactured by prison labor provided for in section 51 of the McKinley Tariff Act of 1890, ch. 1244, 26 Stat. 567 (1890). The earlier provision denied entry into the United States only of goods manufactured by prison labor and did not contain the “consumptive demand exemption,” added in the Tariff Act of 1930.

The section defines “forced labor” as “all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily.” The United States has consistently ratified treaties prohibiting forced labor, as reflected in its forced labor reservations under the Slavery Convention of 1926 and the Import-Export Convention and Protocol of 1927, and its use of the Forced Labour Convention of 1929 in enacting section 307. “Indentured labor” is defined as “work performed under contract but where the contract can be enforced through imposition of a penalty or by imprisonment.” Int’l Trade Comm’n, International Practices and Agreements Concerning Compulsory Labor and U.S. Imports of Goods Manufactured by Convict, Forced, or Indentured Labor, USITC Pub. No. 1630, at n.3 (1984).

215 In the 1929 hearings on the Tariff Act, Senator John Blaine of Wisconsin, its primary sponsor, explained that he had “copied word for word from the definition . . . of forced labor” as used in the ILO Forced Labour Convention, supra note 53. 71 Cong. Rec. 4488, 4491 (Oct. 14, 1929). Although the United States is not a party to that Convention, it is a party to a subsequent ILO treaty on the abolition of forced labor, supra note 54. See text at notes 61-62 supra. The Slavery Convention, supra note 43, Art. 5, provides that “all necessary measures shall be taken to prevent compulsory or forced labour from developing into conditions analogous to slavery.” In offering his amendment, Senator Blaine stressed that such a condemnation of forced labor was consistent with our previous positions as expressed in international treaties, and emphasized a reservation taken to the Slavery Convention (extending the prohibition of slave labor to forced or compulsory labor), which further expressed the U.S. “policy of opposition to forced or compulsory labor.” 71 Cong. Rec. at 4496.

The definition of “forced labor” adopted under section 307 conforms virtually word for word with that of “forced or compulsory labour” under the ILO Forced Labour Convention, supra, Art. 2(1).

216 See supra note 45 and corresponding text. Cf. text at note 65 supra (certain forms of hazardous and unhealthy work outside the Convention’s scope).

217 The identical term in the Forced Labour Convention referred not only to penal sanctions but also to a loss of rights or privileges, such as could occur when persons seeking to terminate their employment are deprived of their right to free choice of subsequent employment. 1968 General Survey, supra note 60, para. 27 & n.3 (citing Record of Proceedings, IL Conf, 14th Sess., at 691 (1930)).

The principles defined when the Forced Labour Convention was adopted in 1930 explicitly contemplated certain forms of indirect coercion, such as

coercive methods of recruiting, the infliction of heavy penalties for breaches of contracts of employment, the abusive use of vagrancy legislation, restrictions on freedom of movement . . . general measures involving compulsion in the recruitment, mobilisation and direction of labour which, taken in conjunction with other restrictions on freedom of employment and stringent rules of labour discipline, deprived the individual of the free choice of employment and freedom of movement.

1968 General Survey, supra note 60, at 193. These principles are relevant to various reported exploitative practices of child labor today, including bonded child labor, labor under locked conditions, kidnapping for sale of labor or sexual exploitation, and fraudulent recruitment.

218 The Department of the Treasury, which is authorized to prescribe regulations for the enforcement of section 307, can raise cases on its own initiative, which has not been done, or upon the submission of detailed information by outsiders. See 19 C.F.R. §12.42(b) (1996). The Department must issue a regulation designating a product as of prohibited origin before the product can be barred entry. Associated Imports, Inc. v. International Longshoremen’s Ass’n, AFL-CIO, 609 F. Supp. 595, 596 (S.D.N.Y. 1985). A recent determination involved the banning of certain iron pipe fittings manufactured with the use of convict, forced or indentured labor in the People’s Republic of China. T.D. 96-34, 30 Cust. B. & Dec. No. 18 (Mar. 6, 1996).

The Treasury has exempted from the scope of section 307 products apparently made with a minimal input of forced labor, or composed of other products made with forced labor; those made voluntarily by a convict on his or her own time without benefiting the state or with adequate remuneration to the convict or relatives; and those involving a minimal price advantage to the foreign producer. Enforcement of U.S. Prohibitions on the Importation of Goods Produced by Convict Labor: Hearing Before the Subcomm. on International Trade of the Senate Comm. on Finance, 99th Cong., 1st Sess. 13 (1985) (testimony of ITC Commissioner Paula Stern) [hereinafter Stern]. Compare China Diesel Imports, Inc. v. United States, 870 F. Supp. 347 (Ct. Int’l Trade 1994) (banning diesel engines from the People’s Republic of China) with 35 Op. Att’y Gen. 500 (1928) (allowing importation of phosphate rock mined in Morocco by convict labor and subsequently screened and processed by free labor).

Of some 60-75 applications of interested parties from 1930 to 1985, only 8 resulted in an actual import prohibition. Stern, supra, at 13. See generally Int’l Trade Commn, supra note 214.

219 In construing this exception, the court in China Diesel Imports stated: “The plain words of the statute indicate that merchandise produced by convict labor is prohibited under any circumstances, and only merchandise produced by non-convict forced labor is subject to the consumptive demand exception.” 870 F. Supp. at 351.

220 Under the first prong, the merchandise need be only fungible, not identical. Id. at 351 n.8. The second prong requires that the product be not merely potentially available, but actually available. Id.

221 See text at note 182 supra; see also supra note 215 (on U.S. reservation to Slavery Convention).

222 See supra note 178 and corresponding text (discussing Art. XX(e)).

223 See GATT 1994, supra note 136, para. 3(a) (limiting exception to mandatory law on certain maritime leases).

224 GATT Art. XX, chapeau. See also supra text at note 163.

225 In particular, such a deviation from GATT/WTO obligations may be possible when all affected states are parties to both the conflicting international instrument and the WTO. See CTE Report, supra note 170, para. I74(iv). On rules of interpretation regarding extrinsic treaty obligations, see supra note 21 and corresponding text.

226 The rationale that a state party to a treaty can influence extraterritorial violations of the treaty has been accepted in various international and regional fora. E.g., Kindler v. Canada, Communication No. 470/1991 (UN H.R. Comm. 1993), reprinted in 14 Hum. Rts. L. J. 307 (1993); Ng v. Canada, Communication No. 496/ 1991 (UN H.R. Comm. 1993), reprinted in 15 Hum. Rts. L. J. 149 (1994); Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989). On peremptory norms, see supra note 20.

227 Abolition of Forced Labour Convention, supra note 54.

228 For the implications of these treaties regarding child labor, see text supra at notes 101-06. As a result of reservations taken upon ratification, U.S. obligations to prevent and punish torture under the Torture Convention and the ICCPR are limited to acts constituting “cruel and unusual punishment” under the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution. S. Rep. NO. 101-30, 101st Cong., 2d Sess. 29 (1990) (Torture Convention); S. Rep. No. 102-23, 102d Cong., 2d Sess. 22 (1992) (ICCPR).

229 Rather than legal standards, such issues are more likely to involve factual determinations of the showing required to trigger the consumptive demand exception, and the role of price advantage in section 307 determinations. The applicability of the statute itself to secondary products made from products made by child labor also requires clarification. 290 19 U.S.C. §2462(c)(7) (1994).

231 Id. §2462 (a) (4) (listing “internationally recognized worker rights”). These rights appear as criteria within the Generalized System of Preferences (GSP), 19 U.S.C. §2461 (1994), the Caribbean Basin Economic Recovery Act (CBERA), 19 U.S.C. §2701 (1994), and the Andean Trade Preference Act (ATPA), 19 U.S.C. §3201 (1994). The labor criterion is prerequisite to the granting of duty-free GSP benefits but is discretionary for the granting of CBERA and ATPA benefits. It has been argued that the Office of the U.S. Trade Representative (USTR) has been implementing the discretionary condition to the exclusion of the mandatory one. Charnovitz, supra note 10, at 184.

232 For example, a recent review of GSP cases involving APEC countries found that child labor was raised in the context of applications by Indonesia, the Philippines, and Thailand, but the issue only received attention where it was the principal problem under review. Colin Fenwick & Jamie Benson, The Effectiveness of the United States G.S.P. Program in Improving Worker Rights: Implications for a Multilateral Social Clause (paper prepared for the International Human Rights Law Clinic, University of Virginia School of Law, Spring 1996) (copy on file with the authors). Child labor was among a handful of issues of concern in the review of the Philippines, id. at 83-84. In contrast, the United States looked closely at a government program to eliminate child labor in reaching its decision involving Thailand, id. at 88. Allegations of endemic child labor received less attention in the context of Indonesia, id. at 91-93.

233 It has been argued that the USTR, which currently administers the statutes, is burdened with a conflict of interest between promoting trade and conditioning trade, and that primary responsibility could be shifted to such agencies as the Department of Labor and/or the Customs Service. Creation of greater consistency could also be accomplished by linking the fact-finding process under the GSP and related reviews to information reported in the State Department’s Country Reports and to any other reporting on child labor that is relevant to imports.

234 Philip, Alston, Labor Rights Provisions in U.S. Trade Law: “Aggressive Unilateralism”? , 15 Hum. Rts. Q. 1 (1993)Google Scholar.

235 The concept of GSP was introduced in the UN Conference on Trade and Development (UNCTAD) in 1964 as a way to address claims by developing countries for preferences to equalize international trade footing. E.g., Staff of House Comm. on Ways and Means, 104th Cong., 1st Sess., Overview and Compilation of U.S. Trade Statutes 12 (Comm. Print 1995) [hereinafter Trade Compilation]. An initial 10-year waiver of the MFN obligation of GATT Article I was given indefinite duration in 1979 through the “enabling clause” of the Texts Concerning a Framework for the Conduct of World Trade in the Tokyo Round of GATT negotiations, which incorporates a principle of graduation to assume “increased GATT responsibilities as . . . economies progress.” Id. at 13. Cf. James, P. Kelleher, The Child Labor Deterrence Act: American Unilateralism and the GATT , 3 Minn. J. Global Trade 161, 168 n.48 (1994)Google Scholar (workers’ rights not specifically contemplated by the enabling clause, which allows the granting of GSP benefits).

236 Council Regulation 3281/94 Concerning Generalized Tariff Preferences for 1995-1998 for Certain Industrial Products Originating in Developing Countries, 1994 O.J. (L 348) 1. Effective January 1, 1995, Article 9 of the European Union’s GSP scheme permits temporary withdrawal of GSP benefits in cases of forced labor and prison-made products. The GSP program also offers incentives, in the form of even lower tariffs, to countries that respect, inter alia, minimum age laws consistent with ILO standards. See generally Simon, Lester, The Asian Newly Industrialized Countries to Graduate from Europe’s GSP Tariffs , 36 Harv. Intl L. J. 220 (1995)Google Scholar.

237 See, e.g., Human Rights Watch/Asia, The European Union’s New GSP/Worker Rights Scheme (1995).

238 A foreign trade zone is a special enclosed area within or adjacent to ports of entry. Individual subzones are generally used by only one firm, whereas there is no limitation on the number of firms that can operate in a general-purpose FTZ. Trade Compilation, supra note 235, at 54. See Foreign Trade Zones Act, 19 U.S.C. §§81a-81u (1994).

239 See Lizwe, Moyo, Zimbabwe: Export Zones Under Fire , Inter Press Serv., Sept. 10, 1996,Google Scholar available in Lexis, World Library, ALLWLD File

240 15 C.F.R. pt. 400.

241 Id., pt. 400.43(a) (1996). On determining whether an activity in an FTZ is in the “public interest,” see Scott, H. Segal & Stephen, J. Orava, Playing the Zone and Controlling the Board: The Emerging Jurisdictional Consensus and the Court of International Trade , 44 Am. U. L. Rev. 2393, 2406-08 (1995)Google Scholar.

242 See, e.g., Antidumping Duties; Countervailing Duties, supra note 149; Uruguay Round Agreements Act, supra note 137, 108 Stat, at 4842-4901. Nevertheless, various federal and state laws, such as “Buy America Acts,” may still be inconsistent with GATT/WTO obligations. See, e.g., 41 U.S.C. §10a (1994); Ohio Rev. Code Ann. §125.09 (Anderson 1996); Tenn. Code Ann. §54-5-135 (1996).

243 The administration of both countervailing duty and antidumping laws requires some determination of material injury or threat of injury to domestic producers, or a material retarding of the establishment of a domestic industry. In theory, countervailing duty is imposed on the importation of a subsidized good corresponding to the benefit granted by an exporting country so that any unfair competitive advantage that foreign manufacturers or exporters might enjoy over U.S. producers is offset. 19 U.S.C. §1671 (1994); Trade Compilation, supra note 235, at 57. The antidumping law, addressed in these legal provisions, targets situations in which goods are sold in the U.S. market at prices lower than those of comparable goods in the home market of the exporter or in other export markets. See the discussion in id. at 63. See also Paul B. Stephan III, Don Wallace, Jr., & Julie A. Roin, International Business and Economics: Law and Policy 880-83 (2ded. 1996).

Section 337 of the Trade Act, 19 U.S.C. §1337, addresses unfair trade practices by targeting import situations that create threats or effects that destroy or substantially injure U.S. industry, prevent the establishment of a U.S. industry, or restrain or monopolize trade and commerce within the United States. Trade Compilation, supra, at 92. In practice, the statute has been applied primarily in patent infringement actions. Its application to imports made by child labor would depend on how much such imports compete with the same or like products made by potential or established U.S. industries, which would necessitate factual evaluation. A similar showing would be required to trigger the safeguards of sections 201-204 of the Trade Act, as amended, 19 U.S.C. §§2251-2254, which authorize action to provide import relief when increased imports of a product into the United States are shown to be a substantial cause of actual or threatened serious injury to a like article produced in the United States. Preferential treatment of member states of the North American Free Trade Agreement (NAFTA) is provided, and lower thresholds can trigger application to Communist countries. See 19 U.S.C. §406.

244 In a review of attempts to achieve international consensus on the role of foreign direct investment and multinational enterprises, a UN study concluded that “[t]he question is no longer whether international norms should exist but whether the international framework as it exists today is sufficient . . . to ensure stable, reliable and mutually beneficial foreign investment relations.” International framework for transnational corporations: Report of the Secretary-General to the Commission on Transnational Corporations, UN Doc. E/C.10/1992/8, para. 34 (1992) [hereinafter International Framework] (emphasis supplied). The Havana Charter was the first attempt at the intergovernmental level to regulate foreign investment. Patrizio Merciai, Les Entreprises Multinationales en droit International 41-42 (1993). That attempt was stillborn as a result of the U.S. refusal to ratify the Charter. Id. at 42. See also International Framework, supra, paras. 16- 19. A notable achievement during the early period of regulatory attempts was the adoption, under the auspices of the World Bank, of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Id., para. 18.

245 On the development of multilateral codes of conduct in general, see Merciai, supra note 244, at 8 5 - 100; 1 World Bank, Legal Framework for The Treatment of Foreign Investment 59-106 (1992) (survey of 25 multilateral instruments).

246 The Labor Side Agreement to the NAFTA provides that each country must comply with its own labor standards, which has been criticized for its potential to encourage mutual erosion of workers’ rights at the national level. North American Agreement on Labor Cooperation, Sept. 14, 1993, U.S.-Can.-Mex., 32 ILM 1499 (1993). Cf Jorge, Perez-Lopez & Eric, Griego, The Labor Dimension of the NAFTA: Reflections on the First Year , 12 Ariz. J. Int’l & Comp. L. 473 (1995)Google Scholar (vigorous implementation of Labor Agreement produced tangible positive results in 1994).

247 The European Union, a highly integrated economic system, prohibits “work by children” and regulates work by “adolescents” and “young people” in all member states. Council Directive 94/33/EC, 1994 O.J. (L 216) 12. See generally Stephen, Weatherill & Paul, Beaumont, Ec Law 613-46 (2d ed. 1995)Google Scholar. The extraterritorial reach of the EU’s orientation against child labor can be seen in its conditioning of extension of GSP. See supra note 236.

248 BITs are commercial treaties that address treatment of foreign investment, including such issues as expropriation, currency conversion and expatriation, and dispute settlement. See Jeswald, W. Salacuse, BIT by BIT: The Growth of Bilateral Investment Treaties and Their Impact on Foreign Investment in Developing Countries , 24 Int’l Law.. 655, (1990)Google Scholar. See also Other international, regional and bilateral arrangements and agreements related to transnational corporations: Report of the Secretary-General, UN Doc. E/C.10/1991/9, paras. 3-6 [hereinafter UN BIT Report] (attributing growdi in BITs between 1988 and mid-1990 primarily to Central and East European countries and certain Latin American countries).

249 UN BIT Report, supra note 248, para. 5.

250 On employment relations and FCN treaties, see Janelle, M. Diller, Title VII of the Civil Rights Act of 1964 and the Multinational Enterprise , 73 Geo. L. J. 1465, 1492-97 (1985)Google Scholar.

251 Reciprocal Trade Agreements Act of 1934, supra note 129. See John, Linarelli, International Trade Relations and the Separation of Powers under the United States Constitution , 13 Dick J. Intl L. 203, 211 (1995)Google Scholar.

252 Hull Pledges Duty Protecting Shoes, Tells Binghamton Trade Board Fears Over Czech Treaty are not Justified, N.Y. Times, Oct. 15, 1937, at 43.

253 E.g., Treaty Concerning the Reciprocal Encouragement and Protection of Investment, Nov. 14, 1991, U.S.-Arg., Preamble, para. 5, 31 ILM 128 (1992) (approving respect for “internationally recognized worker rights’’ without defining the phrase). On the definition of the phrase in section 502 (a) (4) of the Trade Act of 1974 (19 U.S.C. §2462(a)(4)), see text at note 231 supra.

254 E.g., Treaty Concerning the Reciprocal Encouragement and Protection of Investment, Feb. 4, 1994, U.S.- Jam., Preamble <http://www.oas.sice.org>; Treaty Concerning the Treatment and Protection of Investments, with Annex and Agreed Minutes, Oct. 27, 1982, U.S.-Pan. <http://www.oas.sice.org>.

255 See the discussion in part II supra.

256 Some arbitral decisions acknowledge the authority of a host state to change or terminate investment contracts under certain conditions, including where such conduct is in the public interest or in accordance with applicable law. On these cases, see World Bank, supra note 245, at 13-58, 107-43. These cases implicate the authority of the host state to terminate or change an investment contract if its performance would generate or encourage extreme forms of child labor.

257 Don, Wallace Jr., Robert, B. Shanks & David, A. Levy, Model Foreign Investment Law With Annotations 23-25 (1996)Google Scholar.

258 World Bank, supra note 245, at 107-35, gives background on foreign investment codes enacted over the past decade in 48 states (26 African, 9 Asian, 6 European, and 7 Latin American and Caribbean) but does not cover the treatment of labor standards in these codes.

259 Foreign Assistance Act of 1961, Pub. L. No. 87-195, 75 Stat. 424 (codified as amended at 22 U.S.C. §2151 (1994)).

260 22 U.S.C. §2191a (1994).

261 12 U.S.C. §635 note (1994).

262 U.S. tax law, which provides another benefit to U.S. corporations in the form of credits on foreign taxes against U.S. tax liability, has been used to penalize corporations doing business in disfavored countries. 26 U.S.C. §901j (1994). Foreign tax benefits were withheld from U.S. corporations on income earned in South Africa during the antiapartheid era. Omnibus Budget Reconciliation Act of 1987, 26 U.S.C. §901 (j) (2) (C) (“Rangel amendment”). One disadvantage of such use of tax credits is that they do not target a specific industry but, rather, an entire host country.

263 See International Framework, supra note 244, para. 15.

264 Model Business Principles, reprinted in <http://www.ita.doc.gov/ita_home/model.html>.

265 Industry-sponsored codes, as distinct from private interest codes, are largely a phenomenon of the 1990s. E.g., U.S. Dept of Labor, Bureau of Int’l Labor Affairs, The Apparel Industry and Codes of Conduct: A Solution to The International Child Labor Problem?, at iv (1996). A recent U.S. government survey reported that more than 30 of 42 major U.S. retail and manufacturing companies specifically prohibit child labor, through a corporate code of conduct or other company policy, in the manufacture of corporate goods by contractors and subcontractors abroad. Id. See also Jorge, Perez-Lopez, Promoting International Respect for Worker Rights through Business Codes of Conduct , 17 Fordham Int’l L.J. 1 (1993)Google Scholar. As noted in text supra at note 211, such voluntary measures should be developed in a transparent, participatory manner, to avoid being attacked as a technical barrier to international trade, in violation of GATT/WTO obligations.

266 U.S. Dept of Labor, supra note 264, at 35-41. Some codes also encourage business partners to support educational opportunities for young employees. Id. at 40.

267 Standard Setting and Globalization, supra note 63.