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Social Clauses in Trade Agreements: Implications and Action Points for the Private Sector in Developing Countries

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Social Clauses in Trade Agreements: Implications and Action Points for the Private Sector in Developing Countries Social Clauses in Trade Agreements: Implications and Action Points for the Private Sector in Developing Countries 20 January 2021, Geneva Submitted by Gaia Grasselli, Jarrod Suda and Anna Liz Thomas To : International Organisation of Employers (IOE) Avenue Louis-Casaï 71, 1216 Cointrin, Genève All projects prepared and published by TradeLab law clinics and practica are done on a pro bono basis by students for research purposes only. The projects are pedagogical exercises to train students in the practice of international economic and investment law, and they do not reflect the opinions of TradeLab and/or the academic institutions affiliated to TradeLab. The projects do not in any way constitute legal advice and do not, in any manner, create an attorney-client relationship. The project cannot, in any way, and at any time, bind, or lead to any form of liability or responsibility for the clinic participants, participating academic institutions, or TradeLab. Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies P.1 805 - Maison de la Paix, chemin Eugène-Rigot 2, 1202 Gèneve, Switzerland TradeLab International rules on cross-border trade and investment are increasingly complex. There is the WTO, World Bank and UNCTAD, but also hundreds of bilateral investment treaties (BITs) and free trade arrangements ranging from GSP, EU EPAs and COMESA to ASEAN, CAFTA and TPP. Each has its own negotiation, implementation and dispute settlement system. Everyone is affected but few have the time and resources to fully engage. TradeLab aims to empower countries and smaller stakeholders to reap the full development benefits of global trade and investment rules. Through pro bono legal clinics and practica, TradeLab connects students and experienced legal professionals to public officials especially in developing countries, small and medium-sized enterprises and civil society to build lasting legal capacity. Through ‘learning by doing’ we want to train and promote the next generation of trade and investment lawyers. By providing information and support on negotiations, compliance and litigation, we strive to make WTO, preferential trade and bilateral investment treaties work for everyone. More at: https://www.tradelab.org What are Legal Practica Legal practica are composed of small groups of highly qualified and carefully selected students. Faculty and other professionals with longstanding experience in the field act as Academic Supervisors and Mentors for the Practica and closely supervise the work. Practica are win-win for all involved: beneficiaries get expert work done for free and build capacity; students learn by doing, obtain academic credits and expand their network; faculty and expert mentors share their knowledge on cutting-edge issues and are able to attract or hire top students with proven skills. Practicum projects are selected on the basis of need, available resources and practical relevance. Two to four students are assigned to each project. Students are teamed up with expert mentors from law firms or other organizations and carefully prepped and supervised by Academic Supervisors and Teaching Assistants. Students benefit from skills and expert sessions, do detailed legal research and work on several drafts shared with supervisors, mentors and the beneficiary for comments and feedback. The Practicum culminates in a polished legal memorandum, brief, draft law or treaty text or other output tailored to the project’s needs. Practica deliver in three to four months. Work and output can be public or fully confidential, for example, when preparing legislative or treaty proposals or briefs in actual disputes. Centre for Trade and Economic Integration (CTEI) The Centre for Trade and Economic Integration (CTEI) is the Graduate Institute's Centre of Excellence for research on international trade. The Centre brings together the research activities of eminent professors of economics, law and political science in the area of trade, economic integration and globalization. The Centre provides a forum for discussion and dialogue between the global research community, including the Institute's student body and research centres in the developing world, and the international business community, as well as international organisations and NGOs. The Centre runs research projects and organises events. A core goal of the Centre is to foster genuine, interdisciplinary research and to work across discipline to foster solutions that address the major societal issues of today. The Centre for Trade and Economic Integration fosters world-class multidisciplinary scholarship aimed at developing solutions to problems facing the international trade system and economic integration more generally. It works in association with public sector and private sector actors, giving special prominence to Geneva-based International Organisations such as the WTO and UNCTAD. The Centre also bridges gaps between the scholarly and policymaking communities through outreach and training activities in Geneva. More at: www.graduateinstitute.ch/ctei Table of Contents 1. Table of Abbreviations 1 2. Executive Summary 1 3. Introduction 4 4. Methodology 7 5. The Implications and Opportunities of Social Clauses and the Foundations of their Negotiations 8 5.1. Backdrop for social clauses 8 5.2. Social Clauses through Time 8 5.3. Types of Social Clauses 10 5.3.1. Types of commitments made: 10 5.3.2. Monitoring and Cooperation Provisions 12 5.3.3. Dispute Settlement Mechanisms: 13 5.3.4. Kinds of sanctions: 14 6. Labour Clauses in Practice 15 6.1. Guatemala vs the United States: Well-Intentioned Social Protection Under CAFTA-DR, a Pathway to the USMCA, or Both? 15 6.1.1. A Chronology of Events 16 6.1.2. Direct Impacts of the Dispute on Guatemalan Employer Fribo SA 18 6.1.3. Lessons Learned: the Guatemalan Government Engages Internationally in Labour Issues 20 6.1.4. Guatemalan Employers Across Sectors Are Gradually Adopting Best Practices 21 6.2. The Innovative USMCA May Lead to a World of Higher and More Enforceable Labour Standards. 22 6.2.4. The USMCA may also provide some tools that Mexican Employers can use to their advantage. 26 6.2.5. Lesson Learned: Social clauses can foster strong collaboration between governments and employers. 27 6.3. South Korea’s Dispute Under Their FTA with the EU 28 6.3.1. The FTA and its Dispute Resolution Mechanisms 28 6.3.2. A Chronology of Events 29 6.3.3. Violations invoked and steps taken 30 6.3.4. The automobile industry suffers from unstable labour relations 31 6.3.5. Amendments to the TULRAA Aim to Respond to Key Issues under ILO, but Face Opposition on Grounds of National Particularities 32 6.3.6. South Korean Employers Have the Potential of Playing a Role in Stabilizing Labour Relations and Protecting Their Status in the International Market 34 7. Recommendations 35 7.1. Recommendations and Best Practice Examples for Employers in Developing Countries 35 8. Conclusion 40 9. Bibliography 41 10. Annex 1 46 ✔ Next Steps-A Survey for Employer Organizations 46 1. Table of Abbreviations Abbreviation Description AFL-CIO American Federation of Labor and Congress of Industrial Organizations CAFTA-DR Dominican Republic-Central America Free Trade Agreement CP-TPP Comprehensive and Progressive Agreement for Trans-Pacific Partnership CTSD Committee on Trade and Sustainable Development CUSMA Canada-US-Mexico Agreement DAG Domestic Advisory Group FPRW Fundamental Principles and Rights at Work FTA Free Trade Agreement ILO International Labour Organization RRLM Rapid Response Labour Mechanism IOE International Organization of Employers NAAEC North American Agreement on Environmental Cooperation NAALC North American Agreement on Labor Cooperation NAFTA North American Free Trade Agreement T-MEC Tratado entre México, Estados Unidos y Canadá USMCA United States-Mexico-Canada Agreement WTO World Trade Organization 2. Executive Summary Since the 1990s, more free trade agreements have come to include social clauses, which make reference to domestic and international labour standards. As this international legal web continues to grow, so too will the questions and concerns from employers and businesses. This Tradelab report, for the International Organisation of Employers, provides practical guidance for those employers and businesses. It does so by taking the diverse array of actors, the tensions within, and the opportunities set forth by free trade agreements and elaborating upon them using three case studies. Firstly, the report sets the stage by examining the types of social clauses that currently exist. The report examines the various functions that social clauses serve under free trade agreements and how these provisions can act to supplement the ILO Supervisory Mechanism for the implementation of labour standards. The report provides an overview of social clauses through time and the various commitments to labour rights that were made from 1919 with the Covenant of the League of Nations, to the 1996 Ministerial Declaration in Singapore that supported the use of trade to promote labour standards. The report finds that states entering into free trade agreements will conventionally commit to labour standards in one of two ways. They may commit to uphold and ratify ILO fundamental principles and rights, or they may commit to implement (as well as not waiver from) their own national labour laws. In many cases, states commit to both. Understanding commitments under FTAs can help businesses understand their obligations in terms
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