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Common but Differentiated Debates: Environment, Labour and the World Trade Organization

Published online by Cambridge University Press:  17 January 2008

Halina Ward
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In June 1992 the UN Conference on Environment and Development (UNCED) took place in Rio de Janeiro; 1993 was the year of the World Conference on Human Rights, 1994 the year of the Cairo International Conference on Population and Development, and in March 1995 it was the turn of the World Summit for Social Development in Copenhagen.

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Articles
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International & Comparative Law Quarterly , Volume 45 , Issue 3 , July 1996 , pp. 592 - 632
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Copyright © British Institute of International and Comparative Law 1996

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References

1. Source: statement by Ambassador Ismat Kittani. Report of the Working Party on the World Summit for Social Development, Doc.GB.261/10/21, ILO, Nov. 1994.

2. Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, reproduced in part at (1994) 33 I.L.M. 1125.

3. For the first time, the multilateral trade framework extends to trade-related aspects of intellectual property rights, trade in services, and trade-related investment measures.

4. Agenda 21, Chap.2. Section B. UN Doc.A/CONF.151/26 (1992).

5. For the history see Hansson, Social Clauses and International Trade (1983), chap.1, and Charnovitz, “The Influence of International Labour Standards on the World Trading Regime: An Overview” (1987) 126 I.L.R. 565.

6. In this article “trade and labour debate” is used as a generic phrase, referring both to discussions on whether there should be a social clause in the WTO and to the broader impact of existing WTO disciplines on the pursuit of labour goals through instruments with trade effects.

7. Labour provisions in trade agreements other than the GATT have also been defined as “social clauses”. Here, the term “social clause” is confined to the incorporation of social conditionality within the WTO disciplines.

8. Final Act, supra n.2, at p. 1144. The reference reads: “Recognising that their relations in the field of trade and economic endeavour should … [allow] for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.”

9. See the Decision on Trade and Environment, Idem. p.1267.

10. United States—Restrictions on Imports of Tuna, DS21/R. 3 Sept. 1991.

11. For the background in the period leading up to the signing of the Final Act, see ICFTU Campaign for a Social Clause in GATT: Media Coverage. ICFTU. Brussels, Mar. 1994.

12. Although the conclusions of the Chairman of the Trade Negotiations Committee of the Uruguay Round contain a reference to the importance attached by certain delegations to the relationship between the trade order and internationally recognised labour standards. And it appears that the run-up to the WTO's first Ministerial Conference in Singapore in December 1996 will see renewed pressure for the establishment of a WTO working party to look into the question of the links between international trade and working conditions. See e.g. The Global Challenge of International Trade: a Market Access Strategy for the European Union, communication to the Commission from Sir Leon Brittan and Messrs Marin, Bange-mann. van den Broek and Pinheiro, 8 Feb. 1996, p.18.Google Scholar

13. See e.g. FNV and INZET, Sustainable Trade: Towards Environmental and Labour Standards in International Agreements (May 1994): Webb, After GATT: Development and Labour Rights in the Global Economy. War on Want. 1994. and Trade Working Group of the German NGO Forum on Environment and Development, Trade, the Environment and Development, German NGO Secretariat on Environment and Development, Bonn, July 1994.

14. The only academic studies of which the author is aware are Steve Charnovitz's pieces “The World Trade Organisation and Social Issues” (1994) 28 J.W.T. 17 and “Environmental and Labour Standards in Trade” (1992) World Economy 335.

15. Although see UNCTAD Secretariat. New and Emerging Issues on the International Trade Agenda. TD/B/EX(10)/CRP.1. 2 Mar. 1995, which argues, at para.33. that “it would seem appropriate … to examine the new issues in an integrated manner”. However, trade and environment issues are not discussed in the report since they are dealt with separately by an UNCTAD Ad Hoc Working Group.

16. For an introduction see Jackson, The World Trading System: Law and Policy of International Economic Relations (1989).

17. This is not to suggest that sustainability is a supreme ideal. It is better understood as a prerequisite for the achievement of other human goals. See e.g. Elder, “Sustainability” (1991) 36 McGill LJ. 831. The classic working definition is found in World Commission on Environment and Development, Our Common Future (1987), p.8, which defines sustainable development as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs”.Google Scholar

18. The article is not concerned with the support of environmental or labour policies for trade liberalisation, except in so far as it is necessary if sustainable development is to result.

19. See e.g. Principle 10 of the Rio Declaration on Environment and Development (Rio Declaration), reproduced in Sands. Tarasofsky, and Weiss, (Eds), Documents in International Environmental Law. Vol.IIA (1994), p.49, and World Commission, op. cit. supra n.17. at chap.2.Google Scholar

20. Brown Weiss, “Our Rights and Obligations to Future Generations for the Environment” (1990) 84 A.J.I.L. 198 argues that intragenerational equity flows from intergener-ational equity since “were it otherwise, members of one generation could allocate the benefits of the world's resources to some communities and the burdens of caring for it to others and still potentially claim on balance to have satisfied principles of equity among generations”.

21. Integration of economic and environmental considerations is reflected in Principle 4 of the Rio Declaration, supra n.19. Para.6 of the Copenhagen Declaration and Programme of Action (advance unedited text, 20 Mar. 1995, on file with the author) provides: “We are deeply convinced that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development, which is the framework for our efforts to achieve a higher quality of life for all people.”

22. Preamble. Rio Declaration, ibid, and Preamble. Agenda 21. UN Doc. A/CONF. 151/26 (1992).

23. E.g. para.6 of the Copenhagen Declaration, supra n.21. See also UNDP, “Towards Sustainable Human Development”. Human Development Report 1994. pp.13–21, for a “human welfare” focused vision of sustainable development.Google Scholar

24. On social aspects of European integration, see Mosley, “The Social Dimension of European Integration” (1990) 129 I.L.R. 147. On environmental aspects, see Wilkinson. “Maastricht and the Environment” (1992) 4 J.E.L. 221.

25. North American Agreement on Labor Cooperation (1993) 32 I.L.M. 1499. For an analysis of the labour side agreement in the context of the wider trade and social clause debate, see Van Dijk. “NAFTA and the North American Agreement on Labor Cooperation”, paper presented at a seminar on Trade Aid and Social Clauses at the Free University of Amsterdam, 19–20 May 1994 (on file with the author).

26. North American Agreement on Environmental Cooperation (1993) 32 I.L.M. 1480. For an analysis of the environmental side agreement in the context of the broader trade and environment debate, see Esty, “Making Trade and Environmental Policies Work Together: Lessons from NAFTA”, in Cameron, Demaret, and Geradin, (Eds). Trade and Environment: the Search for Balance (1994).Google Scholar

27. For a critical survey of labour provisions in international commodity agreements see Kullman, “‘Fair Labour Standards’ in International Commodity Agreements” (1980) 14 J.W.T. 527, who argues that they are the outcome of protectionism, and do little to benefit exploited workers. See also Van Liemt, “Minimum Labour Standards and International Trade: Would a Social Clause Work?” (1989) 128 I.L.R. 433, 438, and Servais. “The Social Clause in Trade Agreements: Wishful Thinking or an Instrument of Social Progress?” (1989) 128 I.L.R. 423.

28. (1994) 33 I.L.M. 1014.

29. Idem, Art.1(c).

30. For an overview of the environmental features of the Final Act, see Chamovitz, , “The World Trade Organisation and Environmental Supervision”, International Environmental Reporter. 26 Jan. 1994, p.89.Google Scholar

31. Supra n.2.

32. For a history of the “environmental” exceptions of Art.XX see Charnovitz. “Exploring the Environmental Exceptions in GATT Article XX” (1991) 25 J.W.T. 5, 37.

33. For an account of the history of Art.XX(e). see Charnovitz. op. cit. supra n.5. Apparently it exists because when GATT 1947 was being negotiated many countries maintained legislation restricting imports of the products of prison labour in order to protect domestic industry from unfair competition.

34. Final Act. p.69.Google Scholar

35. Idem, p.117.

36. Idem, p.229. Art.8.b.2(c).

37. Idem, p.283. Art.XIV(b). and the Decision on Trade in Services and the Environment. supra n.2. at p. 1255.

38. Indeed. The Economist (“A New Case for Greenery”. 3 June 1995) argues that environmentalists should not use economic justifications for “greenery”.

39. The distinction between questions of “competence” and “appropriateness” is also made by Roessler. in “The Competence of GATT” (1995) 29 J.W.T. 72. 83.

40. WTO Agreement. Art. II:1.

41. I.e. the WTO Agreement and the remaining instruments contained within the Final Act.

42. WTO Agreement. Art.VI:1 and 2.

43. Idem, Art.III:1.

44. Idem, Preamble.

45. Although the GATT disciplines recognise the authority of sanctions applied externally, pursuant to UN structures and processes. See Art.XXI(c), GATT 1994.

46. Supra n.9.

47. Charnovitz (1992). op. cit. supra n.14. at p.348.Google Scholar

48. Final Act. Annex 1C. It goes a long way towards requiring harmonised intellectual property protection along the lines of a number of existing intellectual property conventions referred to in the Agreement. It has been suggested that the TRIPs Agreement is the “obvious model” for a social clause. See Grey, “The International Labour System and ‘Labour Standards’”. UNCTAD/MTN/RAS/CB.11.5 Apr. 1994. para.34.

49. See e.g. FIELD. “Sustainable Development and Integrated Dispute Settlement in GATT 1994”. WWF International, June 1994.

50. See e.g. Trade, the Environment and Development, supra n.13.

51. See e.g. FIELD, op. cit. supra n.49, and for a discussion of the issue within the Trade and Environment Committee, see WTO Secretariat, “The WTO Trade and Environment Committee Takes up Transparency and Dispute Settlement”, in Trade and The Environment. PRESS/TE 003, 22 May 1995.

52. See e.g. FIELD/NRDC. Environmental Priorities for the World Trading System (1995) and ICDA Update on Trade Related Issues. No.18, Mar–May 1995. ICDA. Brussels.

53. Supra n.10.

54. United States—Restrictions on Imports of Tuna. DS29/R, June 1994.

55. United States—Taxes on Automobiles. DS31/R. 29 Sept. 1994.

56. United States—Standards for Reformulated and Conventional Gasoline. WT/DS2/R. 29 Jan. 1996.

57. This is because, on 21 Feb. 1996, the US appealed to the new Appellate Body established within the WTO.

58. See further Report on Trade and Environment to the OECD Council at Ministerial Level. COM/ENV/TD(95)48/FINAL. OECD, 9 May 1995. paras.57–59, which distinguishes between three motivations for non-product-related production and processing method distinctions: environmental, competitiveness-based and value-based.

59. The US Child Deterrence Bill, which would ban US imports of products made by children under 15. is a case in point. See also “How to Make Lots of Money and Save the Planet too”. The Economist, 3 June 1995. p.75. and Alston. “Labor Rights Provisions in US Trade Law: ‘Aggressive Unilateralism’?” (1993) 15 H.R.Q. 1.CrossRefGoogle Scholar

60. In the WTO the boundaries of the areas of overlap may prove to be affected by the operation of the TBT and SPS Agreements. However, whilst it might appear that in areas of overlap WTO dispute-settlement panels should apply the more detailed TBT and SPS Agreement disciplines in preference to the basic Arts, of GATT 1994, this approach was not taken in the Gasoline Standards case. There, the panel concluded that the measures complained of were incompatible with relevant Arts, of GATT 1994, and that it was therefore not necessary to decide on issues raised under the TBT Agreement.

61. E.g. Arts.I and III of the GATT, and Art.2.1 of the TBT Agreement.

62. It should be noted, however, that the panel considered that in reality the import restrictions were quantitative restrictions under Art.XI, not internal regulations under Art.III.

63. Para.5.15.

64. Paras.5.7 and 5.10.

65. Para.5.7.

66. Para.5.33.

67. Where the damage occurs following import, contentious issues of exlra-jurisdictional-ity do not occur and. in principle, relevant Art.XX exceptions will be available.

68. Para.5.26.

69. Para.5.27.

70. Paras.5.26 and 5.39.

71. 1987, reproduced as amended at Copenhagen and London in Sands et al., op. cit. supra n.19. at p.189.Google Scholar

72. 1989, reproduced in idem, p.1075.

73. Washington, 1973, reproduced in idem, p.766.

74. Indeed, the concluding observations of the panel in Tuna II, at para.5.42, contain the following passage: “The Panel… had to resolve whether the contracting parties, by agreeing to give each other in Article XX the right to take trade measures necessary to protect the health and life of plants, animals and persons aimed at the conservation of exhaustible natural resources, had agreed to accord each other the right to impose trade embargoes for such purposes. The Panel had examined this issue in the light of the recognised methods of interpretation and had found that none of them lent any support to the view that such an agreement was reflected in Article XX.” However, strong arguments have been made that dispute-settlement panels could avail themselves of interpretative techniques which would not threaten measures adopted pursuant to multilateral environmental agreements. See e.g. Temple Lang. “The Problem Was Already Solved: GATT Panels and Public International Law”, Remarks of Co-Chairperson at an International Bar Association Conference on Trade and the Environment. Dublin, Nov. 1994.

75. Art.4.

76. Art. 10.

77. For a comprehensive analysis of the Montreal Protocol's trade-related provisions see Brack, International Trade and the Montreal Protocol, RIIA/Earthscan Report, 1996.

78. Discussed in Charnovitz (1992). op. cit. supra n. 14. and in Hansson. op. cit. supra n.5. at pp. 17–18.Google Scholar

79. See Blackhurst, and Subramanian, . “Promoting Multilateral Cooperation on the Environment”, in Anderson, and Blackhurst, (Eds). The Greening of World Trade Issues (1992), p.247. The distinction is also applied by Charnovitz (1994), op. cit. supra n.14.Google Scholar

80. See Wils, “Subsidiarity and EC Environmental Policy: Taking People's Concerns Seriously” (1994) 6 J.E.L. 85.

81. See further Stone, “Defending the Global Commons”, in Sands (Ed.). Greening International Law (1993).

82. See generally Esty. Greening the GATT (1994). pp.142–145 and 105–108.Google Scholar

83. This undoubtedly correct point is made in Charnovitz (1994). op. cit. supra n.14. at p.21.Google Scholar

84. See e.g. Report on Trade and Environment, supra n.58 at paras.20–24. and the draft OECD report Trade and Labour Standards. COM/DEELSA/TD(96)8. 16 Jan. 1996. paras.115–121.

85. Esty. op. cit. supra n.82. at p.162. calls this a “political spillover”.

86. An example of this link between competitiveness and deregulation can be found in Deregulation Now, a Mar. 1995 report from the Anglo-German Deregulation Group (available from the DTI in London). The group, composed of leading industrialists, was formed at the request of John Major and Helmut Kohl in Apr. 1994. The report contains recommendations for labour and environmental deregulation in the EU.

87. Alternatively, the margin of dumping can be described as the difference between the price of the product when all (externalised) environmental costs are taken into account and its actual price. This focuses more on environmental valuation techniques than comparisons of domestic and imported products.

88. An ILO report (The Social Dimensions of the Liberalisation of World Trade, Doc.GP.261/WP/SLD/1, Nov. 1994, para.22) considers the debate about social dumping to be pointless because “in different ways and on both sides it is based on false premises, in particular on the idea of equalising social costs”.

89. The GATT system contains “anti-dumping” rules in Art.VI of the GATT, and the WTO's Agreement on Implementation of Article VI of the GATT 1994. These disciplines provide for importing countries to impose otherwise GATT-incompatible “anti-dumping duties” equal to the margin of dumping. The use of the term “dumping” in social and environmental dumping is misleading in the context of the GATT rules. A product has been “dumped” for GATT purposes if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, and if it causes or threatens material injury to an established industry in the territory of a WTO member or materially retards the establishment of a domestic industry. In most cases (with the exception of some export processing zones) low environmental and labour standards apply equally to goods produced for domestic and export markets, so that no dumping is possible, as GATT defines the concept.

90. See further ILO, World Employment 1995, p.73. and OECD, op. cit. supra n.84, at paras. 128–134.Google Scholar

91. See French, “Pollution Havens”, in Costly Tradeoffs: Reconciling Trade and the Environment. Worldwatch Paper 113. 1993.

92. See further GATT Secretariat. “Trade and the Environment”, International Trade 90–91, p.29; Report on Trade and Environment, supra n.58. at para.48. For an analysis of the causes of non-compliance with ILO conventions, see Landy, The Effectiveness of International Supervision: Thirty Years of ILO Experience (1966). OECD. op. cit. supra n.84, at paras.87–95. sets out a range of economic arguments for non-observation of “core labour standards”.Google Scholar

93. Hansson. op. cit. supra n.5. at pp.167–171.Google Scholar

94. Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference, ILO, Geneva, Dec. 1994.

95. See generally Ghebali, The International Labour Organisation: A Case Study on the Evolution of UN Specialised Agencies (1989). chap. III.

96. Supra n.94. at s.1(a).

97. Idem, s.II. See Lee. “The Declaration of Philadelphia: Retrospect and Prospect” (1994) 133 I.L.R. 466 for an analysis of the Declaration in relation to economic policy. Ghebali. op. cit. supra n.95, at p.63. notes: “For the first time, an organisation was proclaiming the impossibility of separating social and economic objectives, and indeed affirming the preeminence of the social dimension in economic planning.” If full integration of economic and labour concerns is to be achieved in the interests of sustainable development, however, the constitution of the ILO should be revisited. Section IV of the Philadelphia Declaration says that “the fuller and broader utilisation of the world's productive resources necessary for the achievement of the objectives set forth in this Declaration can be secured by effective international and national action, including measures to expand production and consumption”. Even the Preamble to the WTO Agreement is. on its face, more directly supportive of sustainable development.

98. UN Doc.E/Conf.2/78 (1948).

99. E.g. TBT Agreement. Arts.2.4 and 2.6, SPS Agreement. Arts.3.2 and 5.

100. Although, in the case of complaints alleging infringement of trade union rights related to freedom of association, ILO supervisory procedures may be invoked regardless of whether or not the relevant conventions have been ratified by the member concerned.

101. It provides: “The least-developed countries recognised as such by the United Nations will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capacities.”

102. E.g. Ward. “Trade and Environment in the Round—and After” (1994) 6 J.E.L. 263. 281–286.

103. E.g. the comments of the US government delegate in the ILO working party on the Social Dimensions of the Liberalisation of International Trade. ILO Doc.GB.261/WP/ SDL/RP. Nov. 1994. pp.37–38.Google Scholar

104. See generally Emmerij. “The Employment Problem and the International Economy” (1994)133 I.L.R. 449.

105. For a general introduction see Frances Cairncross. “Workshop of the World?”, Analysis. BBC Radio 4, 8 July 1993 (transcript on file with the author).

106. That is, economic growth or increased productivity that is not accompanied by higher rates of employment.

107. Khor, Why GATT and the WTO Should not Deal with Labour Standards. Third World Network, Apr. 1994.

108. Although there is also awareness in the environmental community of the dangers of the “environmentalism threatens jobs” argument. E.g. Friends of the Earth in the US has produced a document entitled Sustainable Development and Employment Act of 1995: A Working Draft of Model Legislation to Promote Full Employment in an Environmentally Sustainable Economy (on file with the author).

109. E.g. TBT Agreement, Art.2.2 and SPS Agreement. Art.5.6. So far. these agreements have not been analysed for their ability to support effective labour policy. Labelling schemes that include criteria relating to labour practices during the production of imported products, and possibly also regulations that relate to the impact of overseas production methods on the health of workers, could be subject to scrutiny within the TBT and SPS Agreements. The “necessity” test in GATT Art.XX(b) is also relevant in distinguishing between protection and protectionism. For an account of proportionality and necessity in the GATT. see Char-novitz, “GATT and the Environment—Examining the Issues” (1992) 4(3) Int. Env. Affairs 203. The CAFE panel's interpretation of Art.III:4 also evidenced a concern to distinguish between environmental protection and protectionism.

110. Blackhurst and Subramanian. op. cit. supra n.79.

111. E.g. as employed in the 1982 UN Convention on the La w of the Sea. Arts. 136 and 137 (extracts in Sands et al., op. cit. supra n.19, at p.356). In treaties that do not deal with the global commons the term “common concern of humankind” is preferred. See e.g. the Preamble to the Convention on Biological Diversity, in Sands et al., idem, p.845.

112. Thus it can be argued that some unilateral trade restrictions support effective implementation of domestic consumer policy goals in relation to labour and the environment.

113. McGee. “The Moral Case for Free Trade” (1995) 29 J.W.T. 69 argues that any kind of trade restriction is morally wrong because it violates rights—specifically the rights of adults to buy “what they want from whomever they want at whatever price they can agree upon”. For McGee the right of an individual not to be forced to labour has the same importance as the right of a consumer to shop.

114. See further Barcelona Traction I.C.J. Rep. 1970.3. paras.33–34, where the ICJ identified certain human rights creating obligations erga omnes. All States have a legal interest in the protection of these rights. The question that arises is the extent to which it should be permissible for States unilaterally to impose trade restrictions to express this legal interest.

115. Although even with CITES doubts are periodically raised about the appropriateness of trade restrictions.

116. See further De la Cruz. “International Labour Law: Renewal or Decline?” (1994) Int. J. Comp. Labour Law and Industrial Relations (Autumn) 201. 217.

117. Constraints on the Unilateral Use of Trade Measures to Enforce Environmental Policies. 8 Apr. 1994.

118. In this regard see the OECD Declaration of 21 June 1976 on International Investment and Multinational Enterprises, as revised, and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy. 1977. These codes can themselves be seen as encouraging convergence through voluntary action.

119. See e.g. Pennartz, “Looking for Alternatives and Additional Tools: Focus on Transnational Companies and Their Own ‘Codes of Conduct’: An Instrument for Better Working and Living Conditions for Workers in the North and the South?”, contribution to IRENE workshop. Brussels, 1 and 2 Dec. 1994 (on file with the author), and “Human Rights”, The Economist. 3 June 1995. The UK company B&Q applies environmental global sourcing guidelines. Ideally, sourcing guidelines should be developed through processes in which workers and individuals as well as businesses are accorded a meaningful role.

120. For a background, see Christian Aid, Pulling the Rug on Poverty: Child Workers in the Indian Carpet Industry (Nov. 1994).

121. (1992) O.J. L99/1 (11 Apr.).

122. The TBT Agreement applies to technical regulations and standards. In respect of standards (compliance with which is not mandatory and which, for the purposes of the Agreement are produced by “recognised” bodies). Art.4 provides that members “shall take such reasonable measures as may be available to them to ensure that… non-governmental standardising bodies within their territories … accept and comply with” the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to the Agreement. See also Tietje, “Voluntary Eco-Labelling Programmes and Questions of State Responsibility in the WTO/GATT Legal System” (1995) 29 J.W.T. 123. and Free Traders Put Pressure on EC Eco-Labelling Scheme. ENDS Report 237. Oct. 1994.

123. See e.g. European Commission. Communication to the Council and to the Parliament on Trade and Environment, 28 Feb. 1996. p.15, which calls for the development of a WTO transparency regime applicable to both governmental and non-governmental schemes.

124. Dawkins, “Ecolabelling: Consumers' Right to Know or Restrictive Business Practice”, Review Draft, Sept. 1995 (on file with the author) recommends that eco-labelling schemes broaden their scope to include social criteria.

125. See e.g. ILO, World Labour Report 1992–1993, and ILO Governing Body. Record Number of Cases of Violation of Freedom of Association, ILO Press Release. 19 Oct. 1992. For further examples, see Upfront, No.10. Autumn 1994. the journal of War on Want, and Christian Aid. op. cit. supra n.120.

126. The UK e.g. contravened Convention No.87 on Freedom of Association and Protection of the Right to Organise when it banned trade unions at the intelligence-gathering unit. Government Communications Headquarters (GCHQ). See ILO Governing Body, 234th Report of the Committee on Freedom of Association. 1984. Case No. 1261.

127. A selection of contemporary proposals can be found in: European Parliament Resolution on the introduction of a social clause in the unilateral and multilateral trading system. European Parliament Doc.A3–0007/94. 9 Feb. 1994; Motion for a Resolution on the conclusion of the Uruguay Round and the future activities of the WTO, European Parliament Doc.B4–0464/94. 8 Dec. 1994; Mémorandum de la Présidence sur la dimension sociale du commerce international. EU Council Doc.5295/95 SOC 83 COMER 36 GATT 56, Brussels, 22 Mar. 1995: Bell, GATT and a Social Chapter: Labour's Proposals for the World Trade Organisation, June 1994 (on file with the author); ICFTU, The Social Clause: Rationale and Operating Mechanisms and International Workers' Rights and Trade: The Need for Dialogue. Sept. 1994: International Metalworkers' Federation, Trade and Workers' Rights: Time for a Link. IMF. 1988.

128. One exception is Trade, the Environment and Development, supra n.13.

129. For the texts see Blanplain (Ed.). International Encyclopedia for Labour Law and Industrial Relations.

130. Van Liemt. op. cit. supra n.27. at p.437. surveys eight different proposals for a social clause. All eight refer to Conventions 87, 98 and 138.

131. ibid.

132. Discussed in FNVand INZET. op. cit. supra n.13. at pp.19–22. The economic criteria do not relate to notions of “dumping” but to development concerns: namely the extent to which the application of a particular convention affects the competitive position of developing countries.Google Scholar

133. ICFTU, The Social Clause, supra n. 127.

134. ILO report, supra n.88. at para.24, takes a similar approach. if this question is taken as a starting point the effects that trade liberalisation itself has on social progress can be downplayed. Therefore, it should be accompanied by social impact assessment of trade liberalisation. This already falls within the ILO's mandate. See the Philadelphia Declaration, supra n.94, at s.II.

135. ILO report, supra n.88. at para.28.

136. Idem, para.29.

137. This draws on the analysis in OECD. op. cit. supra n.84, at Part I. which not only identifies a number of “core” conventions, but also sets out 14 categories into which the ILO groups existing conventions, concluding that “a hierarchy can be discerned among these Conventions, even though the ILO does not make one”. “First-level” conventions, according to the report, are those representing minimum norms which should be respected by all. and whose implementation does not rely on other conventions. Second-level conventions establish rules that help improve working conditions, minimum wages, social benefits and workers' participation in the determination of their labour conditions.

138. Idem, para.8.

139. See ILO. Standard-Setting Policy: The Promotion of Basic Human Rights Conventions, GB.262/LILS/4, Mar.–Apr. 1995.

140. Seeing trade liberalisation in this light could also mean that in extreme cases persistent offenders could be expelled from the WTO. Even multilaterally controlled economic sanctions are preferable.

141. ICFTU, International Workers' Rights, supra n.127. In The Social Clause, supra n.127. ICFTU suggests that trade sanctions “should probably be increased tariffs”.

142. For an excellent summary see Van Liemt, The Multilateral Social Clause in 1994, ICDA Draft Discussion Paper, Aug. 1994. p.2. For an account of the advantages and shortcomings of the ILO processes see Landy, op. cit. supra n.92.

143. Art.19(3) of the ILO constitution is cited to support this. See para.6.1, Delhi Declaration, Fifth Conference of Labour Ministers of Non-Aligned and Other Developing Countries, New Delhi, 19–23 Jan. 1995. The Report of the Director-General to the 81st session of the International Labour Conference in 1994, Defending Values, Promoting Change, states that one of the premises upon which the ILO is based in reliance upon co-operation rather than coercion in its efforts to promote social progress (p.58). However, practice apart, Art.33 of the ILO's constitution could provide a theoretical basis for the imposition of trade sanctions in the event of a member failing to carry out recommendations specified in the report of a commission of inquiry or a decision of the ICJ. This is supported by Landy. idem, p.179, although he raises the question of whether sanctions should be authorised through the UN Security Council.

144. E.g. DSU, Arts.3, 4 and 5.

145. Idem, Art.22.

146. See generally Daoudi and Dajani. Economic Sanctions (1983); Alston, “International Trade as an Instrument of Positive Human Rights Policy” (1982) 4 H.R.Q. 155.168; Kohona. The Regulation of International Economic Relations Through Law (1985), chap.7.

147. See e.g. “Suffer the Little Children's Goods”. The Economist. 14 Aug. 1993, which argues that if a carpet factory employing children can no longer export, the children may go to work in an industry that doesn't produce internationally traded goods, such as brickmaking, begging or prostitution. See also The Economist, supra n.l 19. and Khor, op. cit. supra n.107.

148. See further Berthelot, “Covert and Overt Reasons for a Social Clause” (1995) 2 I.C.D.A. J.

149. Landy, op. cit. supra n.92.

150. ICFTU, The Social Clause, supra n.127.

151. See e.g. The Social Dimensions of International Trade: Joint Statement by World Trade Union Confederations. ICFTU, WCL and ETUC. Feb. 1994, which envisages increased tariffs levied by all WTO members.

152. See e.g. Servais. op. cit. supra n.27, at pp.431–432, who talks of the consequences of exploitation of labour in exporting industries for “certain industries in an importing country”. Servais suggests a mediation and joint investigation procedure for dealing with disputes, and that, as a last resort, “the parties would be free to take whatever unilateral economic measures they considered appropriate”.Google Scholar

153. A Misereor Discussion Paper.Social Clauses in International Trade Law, 1994 (on file with the author) suggests that trade sanctions be linked to specific products, arguing that this could limit the danger of protectionist misuse of social clauses.

154. See further Defending Values, supra n.143, at p.63.Google Scholar

155. Daoudi and Dajani. op. cit. supra n.146, at p.166.Google Scholar

156. See ICFTU, The Social Clause, supra n.127.

157. Supra n.94, at Art.3.

158. See e.g. Edgren, “Fair Labour Standards and Trade Liberalisation” (1979) 118 I.L.R. 523. who points out that the most blatant cases of exploitation and deprivation are usually found in plantations and mines, construction industries and small service firms working entirely for the domestic market.

159. An alternative integrative approach, that sees a role for trade restrictive actions “only as a last resort”, is set out in de Castro, Trade and Labour Standards: Using the Wrong Instruments for the Right Cause. UNCTAD Discussion Paper No.99, May 1995. De Castro advocates the negotiation of a new global convention on core labour standards of universal value. He sees in global conventions on environmental problems, such as the Biodiversity Convention, examples of how “the sharing of moral concerns on a global scale can be dealt with through a convention encouraging appropriate sharing of the burden to find solutions within a development context”.

160. See further Defending Values, supra n.143. at p.62. where it is suggested that an incentive to ratify a new convention within the ILO would be the pledge of ratifying States not to resort to unilateral trade restrictions. This is cynical indeed when the WTO exists in large measure precisely to prevent protectionist use of unilateral trade restrictions.Google Scholar

161. ILO report, supra n.88. at p.12. The report cites one advantage of such an approach as its multilateral nature, but refers also to its “complexity and uncertainties”, stating that “this type of solution would not enable any trade measures undertaken to be applied in a strictly uniform and multilateral manner”.Google Scholar

162. The difficulties of establishing verification and certification systems in relation to non-product-related production and processing methods have been considered in the trade and environment context. See Report on Trade and Environment.supra n.58, at paras.63–65. The difficulties in the trade and labour context may be even greater.

163. E.g. Charnovitz, (1994). op. cit. supra n.14. at p.23.Google Scholar points out that whilst the failure of a nation to cease production of CFCs can make it difficult for other nations to reach their own environmental goals, the failure of a nation to outlaw child labour does not prevent other nations from doing so. Economic spillovers and the threat of a “downward spiral” do not appear to be taken into consideration in this argument.

164. See e.g. Alston, op. cit. supra n.146.

165. Cf. Charnovitz (1994), op. cit. supra n.14. who argues that labour rights can facilitate democratisation but environmental standards do not. although democratic government may be a prerequisite for attending to the environment.

166. ECOSOCE/CN.4/Sub.2/1994/9.6. July 1994.

167. Idem principle 19.

168. Idem principle 15.

169. Idem principle 18.

170. See also the conclusions of the Report of the Symposium on Workers' Education and the Environment, GB.259/ESP/4/1, ILO. Geneva, Mar. 1994, which notes: “The right of workers to establish and join trade unions, the right to collective bargaining and the right to full participation is essential to effective involvement in environmentally sound development.” The conclusions of the symposium also contain a call for workers and their organisations to have certain workplace environmental rights, many of which complement those of the UN Commission on Human Rights draft principles.

171. BISD 25 Supp.203 (1980). See also the Final Act's Decision on Measures in Favour of Least-Developed Countries, supra n.2, at p.1248.Google Scholar

172. US Trade and Tariff Act of 1984, Title V. See further “Jakarta Eases Curbs on Workers in Attempt to Avoid US Penalty”, Guardian. 16 Feb. 1994. The US has also attached labour conditionality to eligibility criteria within the bilateral Caribbean Basin Initiative and in relation to investment insurance provided by the Overseas Private Investment Corporation. See further Charnovitz. op. cit. supra n.5, and “US Backs Funds for Green Jobs in Third World”. Financial Times, 21 Apr. 1994.

173. (1994) O.J. L348/1 (31 Dec.).

174. Idem, Art.7. Cf. the Commission's draft regulation ((1994) O.J. C333/9 (29 Nov.)), which contained a fully worked system of preferential arrangements, and the European Parliament's amendments ((1994) O.J. C341/243 (5 Dec.)), which sought to extend the special incentive arrangements to other ILO conventions on equal treatment of men and women and to apply them from 1 Jan. 1996.

175. Supra n.173. at Arts.7.1 and 8.1.

176. Art.8.

177. Arts.9–14. The first investigation pursuant to these provisions, which relates to alleged forced labour practices in Myanmar, is currently under way. See Notice of Initiation of an Investigation of Forced Labour Practices Being Carried out in Myanmar in View of a Temporary Withdrawal of Benefits from the European Union's Generalised Scheme of Preferences (1996) O.J. C15/3 (20 Jan.).

178. Charnovitz, op. cit. supra n.5.

179. Discussions have taken place between the EU Commission and the WTO. as well as with UNCTAD. Source: ICDA Updateon Trade Related Issues. No.17. Nov. 1994–Feb. 1995. ICDA. Brussels.

180. Abraham Katz, of the US Council for International Business, has made a similar suggestion in relation to labour standards. See the minutes of the ILO working party, supra n.103. at p.17.Google Scholar

181. Although the Montreal Protocol's non-confrontational non-compliance procedure gets close. The working group responsible for drawing up the non-compliance regime prepared an indicative list of measures that might be taken by a meeting of the parties in respect of non-compliance with the Protocol, which includes a reference to “[s]uspension, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with … trade”: reproduced in Sands et al., op. cit. supra n.19, at p.244. However, the non-compliance procedure itself is silent on the question of enforcement mechanisms.Google Scholar