Labour law beyond borders

Journal of International Economic Law

Volumn 5, Issue 3, 2002, Pages 605-645

  Macklem, Patrick ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 0036383116     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.3.605     Document Type: Article

References (205)

1. Compare O. Kahn-Freund 'A Note on Status and Contract in British Labour Law' (1967) 30 Modern Law Review 635 at 640 ('t]he labour law of Great Britain shares with that of the other nations in our orbit of civilisation two essential jurisprudential features: it is based on the contractual foundation of the obligation to work and of the obligation to pay wages, and it is at the same time permeated by a tendency to formulate and to enforce an ever growing number of imperative norms for the protection of the worker').
2. On post-fordism, see Michael J. Piore and Charles F. Sabel, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books 1984); David Harvey, The Condition of Postmodernity: An inquiry into the origins of cultural change (Oxford: Basil Blackwell 1989) at 125-72; Paul Hirst and Jonathan Zeitlin 'Flexible Specialization vs. Post-Fordism: Theory, evidence and policy implications' (1991) 20 Economy and Society 1.
3. On post-fordism, see Michael J. Piore and Charles F. Sabel, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books 1984); David Harvey, The Condition of Postmodernity: An inquiry into the origins of cultural change (Oxford: Basil Blackwell 1989) at 125-72; Paul Hirst and Jonathan Zeitlin 'Flexible Specialization vs. Post-Fordism: Theory, evidence and policy implications' (1991) 20 Economy and Society 1.
4. On post-fordism, see Michael J. Piore and Charles F. Sabel, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books 1984); David Harvey, The Condition of Postmodernity: An inquiry into the origins of cultural change (Oxford: Basil Blackwell 1989) at 125-72; Paul Hirst and Jonathan Zeitlin 'Flexible Specialization vs. Post-Fordism: Theory, evidence and policy implications' (1991) 20 Economy and Society 1.
5. Some criticize this development: see Neil Kearney 'Corporate Codes of Conduct: The privatized application of labour standards' in Sol Picciotto and Ruth Mayne (eds), Regulating International Business: Beyond liberalization (Houndsmill: Macmillan 1999) 205-20 at 208 ('[c]orporate codes of conduct have . . . privatized the implementation of national labour legislation and the application of international labour standards'); others applaud it: Charles Sabel, Dara O'Rourke, Archon Fung 'Ratcheting Labor Standards: Regulation for continuous improvement in the global workplace' (May 2000 draft) at 3 (advocating the sidestepping of 'customary standard setting bodies' in favour of 'the pressure of public opinion and financial markets to move multinational firms to adopt "codes of conduct" ').
6. Again, some criticize this development: see T. N. Srinivasan 'International Trade and Labour Standards from an Economic Perspective' in Pitou van Dijck and Gerit Faber (eds), Challenges to the New World Trade Organization (The Hague: Kluwer Law International 1996) 219-43 at 239-40 ('[m]onitoring the observance of standards could lead to managed trade and intrusion in the domestic political processes of other countries'); others applaud it: see Robert Howse and Makua Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (Montreal: International Centre for Human Rights and Democratic Development 2000) ('[h] uman rights norms should always be taken into account when interpreting international trade and investment obligations').
7. Again, some criticize this development: see T. N. Srinivasan 'International Trade and Labour Standards from an Economic Perspective' in Pitou van Dijck and Gerit Faber (eds), Challenges to the New World Trade Organization (The Hague: Kluwer Law International 1996) 219-43 at 239-40 ('[m]onitoring the observance of standards could lead to managed trade and intrusion in the domestic political processes of other countries'); others applaud it: see Robert Howse and Makua Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization (Montreal: International Centre for Human Rights and Democratic Development 2000) ('[h] uman rights norms should always be taken into account when interpreting international trade and investment obligations').
8. Important exceptions include Harry Arthurs 'Reinventing Labor Law for the Global Economy: The Benjamin Aaron lecture' (2001) 22 Berkeley Journal of Employment and Labor Law 271; Adelle Blackett 'Global Governance, Legal Pluralism and the Decentered State: A labor law critique of codes of corporate conduct' (2001) 8 Indiana Journal of Global Legal Studies 401; David M. Trubek, Jim Mosher and Jeffrey S. Rothstein Transnationalism in the Regulation of Labor Relations: International regimes and transnational advocacy networks' (2000) 25 Law & Social Inquiry 1187; and Katherine Van Wezel Stone 'Labor Law in the Global Economy: Four approaches to transnational labor regulation' (1995) 16 Michigan Journal of International Law 987.
9. Important exceptions include Harry Arthurs 'Reinventing Labor Law for the Global Economy: The Benjamin Aaron lecture' (2001) 22 Berkeley Journal of Employment and Labor Law 271; Adelle Blackett 'Global Governance, Legal Pluralism and the Decentered State: A labor law critique of codes of corporate conduct' (2001) 8 Indiana Journal of Global Legal Studies 401; David M. Trubek, Jim Mosher and Jeffrey S. Rothstein Transnationalism in the Regulation of Labor Relations: International regimes and transnational advocacy networks' (2000) 25 Law & Social Inquiry 1187; and Katherine Van Wezel Stone 'Labor Law in the Global Economy: Four approaches to transnational labor regulation' (1995) 16 Michigan Journal of International Law 987.
10. Important exceptions include Harry Arthurs 'Reinventing Labor Law for the Global Economy: The Benjamin Aaron lecture' (2001) 22 Berkeley Journal of Employment and Labor Law 271; Adelle Blackett 'Global Governance, Legal Pluralism and the Decentered State: A labor law critique of codes of corporate conduct' (2001) 8 Indiana Journal of Global Legal Studies 401; David M. Trubek, Jim Mosher and Jeffrey S. Rothstein Transnationalism in the Regulation of Labor Relations: International regimes and transnational advocacy networks' (2000) 25 Law & Social Inquiry 1187; and Katherine Van Wezel Stone 'Labor Law in the Global Economy: Four approaches to transnational labor regulation' (1995) 16 Michigan Journal of International Law 987.
11. Important exceptions include Harry Arthurs 'Reinventing Labor Law for the Global Economy: The Benjamin Aaron lecture' (2001) 22 Berkeley Journal of Employment and Labor Law 271; Adelle Blackett 'Global Governance, Legal Pluralism and the Decentered State: A labor law critique of codes of corporate conduct' (2001) 8 Indiana Journal of Global Legal Studies 401; David M. Trubek, Jim Mosher and Jeffrey S. Rothstein Transnationalism in the Regulation of Labor Relations: International regimes and transnational advocacy networks' (2000) 25 Law & Social Inquiry 1187; and Katherine Van Wezel Stone 'Labor Law in the Global Economy: Four approaches to transnational labor regulation' (1995) 16 Michigan Journal of International Law 987.
12. See, for example, Susan Strange, The Retreat of the State: The diffusion of power in the world economy (Cambridge: Cambridge University Press 1996).
13. For insightful discussions of fordism, see Harvey, above n 2 at 121-200; Charles F. Sabel, Work and Politics: The division of labour in industry (Cambridge: Cambridge University Press 1982) at 31-77.
14. For insightful discussions of fordism, see Harvey, above n 2 at 121-200; Charles F. Sabel, Work and Politics: The division of labour in industry (Cambridge: Cambridge University Press 1982) at 31-77.
15. See Kerry Rittich 'Feminization and Contingency: Regulating the stakes of work for women' in Joanne Conaghan, Michael Fischl and Karl Klare (eds), Labour Law in an Era of Globalization; Transformative practices & possibilities (Oxford: Oxford University Press 2002) 117-36 (theorizing the effects of globalization and contingency on women workers).
16. See generally Charles Sabel 'Moebius-Strip Organizations and Open Labor Markets: Some consequences of the reintegration of conception and execution in a volatile economy' in Pierre Bourdieu and James S. Coleman (eds), Social Theory for a Changing Society (Boulder: Westview Press 1991) 23-54 at 25. On the rise of decentralized decision-making, see Susan Helper, John Paul MacDuffie and Charles Sabel 'Pragmatic Collaborations: Advancing knowledge while controlling opportunism' (2000) 9 Industrial and Corporate Change 443. For scepticism about a shift from fordism to postfordism, see Andrew Sayer and Richard Walker, The New Social Economy: Reworking the division of labour (Cambridge: Blackwell 1992) at 191-223.
17. See generally Charles Sabel 'Moebius-Strip Organizations and Open Labor Markets: Some consequences of the reintegration of conception and execution in a volatile economy' in Pierre Bourdieu and James S. Coleman (eds), Social Theory for a Changing Society (Boulder: Westview Press 1991) 23-54 at 25. On the rise of decentralized decision-making, see Susan Helper, John Paul MacDuffie and Charles Sabel 'Pragmatic Collaborations: Advancing knowledge while controlling opportunism' (2000) 9 Industrial and Corporate Change 443. For scepticism about a shift from fordism to postfordism, see Andrew Sayer and Richard Walker, The New Social Economy: Reworking the division of labour (Cambridge: Blackwell 1992) at 191-223.
18. See generally Charles Sabel 'Moebius-Strip Organizations and Open Labor Markets: Some consequences of the reintegration of conception and execution in a volatile economy' in Pierre Bourdieu and James S. Coleman (eds), Social Theory for a Changing Society (Boulder: Westview Press 1991) 23-54 at 25. On the rise of decentralized decision-making, see Susan Helper, John Paul MacDuffie and Charles Sabel 'Pragmatic Collaborations: Advancing knowledge while controlling opportunism' (2000) 9 Industrial and Corporate Change 443. For scepticism about a shift from fordism to postfordism, see Andrew Sayer and Richard Walker, The New Social Economy: Reworking the division of labour (Cambridge: Blackwell 1992) at 191-223.
19. Manuel Castells, The Information Age, vol 1: The Rise of the Network Society (Oxford: Blackwell 1996) at 475.
20. See, for example, R. M. Solow, The Labour Market as a Social Institution (Cambridge: Basil Blackwell 1990); Richard B. Freeman and James L. Medoff, What Do Unions Do? (New York: Basic Books 1984).
21. See, for example, R. M. Solow, The Labour Market as a Social Institution (Cambridge: Basil Blackwell 1990); Richard B. Freeman and James L. Medoff, What Do Unions Do? (New York: Basic Books 1984).
22. Jonathan Perraton, David Goldblatt, David Held, and Anthony McGrew 'The Globalization of Economic Activity' (1997) 2 New Political Economy 257 ('[t]he exit options of capital have increased strongly and global competition has emerged, making state power over national production and finance correspondingly weaker').
23. Peter Dicken, Global Shift: Transforming the world economy (London: Paul Chapman 1998) (3d ed) at 7.
24. See, for example, H. W. Arthurs 'Labour Law Without the State?' (1996) 46 University of Toronto Law Journal 1 at 44-5 (the new economy has led to 'the enfeeblement of the nation state' and the labour law that will remain will likely be 'indigenous, implicit, and informal' produced in the workplace and corporation).
25. Colin Crouch 'The Globalized Economy: An end to the age of industrial citizenship?' In Tom Wilthagen (ed), Advancing Theory in Labour Law and Industrial Relations in a Global Context (North-Holland: Royal Netherlands Academy of Arts and Science 1998) 151-64 at 155 ('the mobility of productive capital in the sense of factories, distribution chains and points of service delivery is in practice far more restricted than the theoretical concept of unrestricted capital movements implies').
26. Robert Boyer 'The Changing Status of Industrial Relations in a More Interdependent World: An interpretation and agenda for further research,' in Wilthagen, ibid 35-65 at 39 ('national reactions to this threat [of capital flight] are quite diverse, which means that internationalization has only an indirect effect, through the strategies of the main social and economic actors and their interplay with the legacy of national economic specialization and labour legislation').
27. See Brian A. Langille 'Eight Ways to Think About International Labour Standards' (1997) 31 Journal of World Trade 27 (discussing parallel sets of arguments for and against domestic and international labour market regulation).
28. Treaty of Versailles (1919), Part XIII.
29. See generally Virginia A. Leary 'The Paradox of Workers' Rights as Human Rights' in L. Compa and S. Diamond (eds), Human Rights, Labor Rights and International Trade (Philadelphia: University of Pennsylvania Press 1996) 22-47.
30. Compare R. Locke, R. T. Kochan and M. Piore 'Reconceptualizing Comparative Industrial Relations: Lessons from international research' (1995) 2 International Labour Review 134 at 154 ('[c]ost-based strategies . . . exert a perverse externality on society by making it more risky for competing firms to make the long-term investments needed to upgrade skills and change their organizational practices . . . to reap the benefits of these investments').
31. Treaty of Versailles, above n 18.
32. George S. Trisciuzzi 'Multilateral Regulation of Direct Foreign Investment' in Bart S. Fisher and Jeff Turner (eds), Regulating the Multinational Enterprise: National and international challenges (New York: Praeger 1983) 143-63 at 148 ('harmonization would reduce the high costs borne by MNCs in dealing with widely divergent regulatory regimes in different countries').
33. But see John O. McGinnis and Mark L. Movsesian 'The World Trade Constitution' (2000) 114 Harvard Law Review 511 at 561-2 ('jurisdictional competition is likely on balance to improve regulation; nations should not cede regulatory authority to an international body on a race-to-the bottom rationale').
34. Sean Cooney 'Testing Times for the ILO: Institutional reform for the new international political economy' (1999) 20 Comparative Labor Law & Policy Journal 365 at 368-9.
35. Ibid at 369.
36. See, for example, Minimum Age Convention 1973 (No. 138) (authorizing states to exclude from its operation certain categories of employment that present problems of application). See generally Jean-Michel Servais 'Flexibility and Rigidity in International Labour Standards' (1986) 125 International Labour Review 193 at 199-200.
37. See, for example, Minimum Age Convention 1973 (No. 138) (authorizing states to exclude from its operation certain categories of employment that present problems of application). See generally Jean-Michel Servais 'Flexibility and Rigidity in International Labour Standards' (1986) 125 International Labour Review 193 at 199-200.
38. Above n 24 at 371.
39. International Labour Office 'International Labour Conference Sixty-Third Session, Record of Proceedings, Report III (Part 1A), para 31 (1977), reaffirmed in 1987 Report, paras 19-24, and 1999 Report, para 8, cited in Cooney above n 24 at 377.
40. International Labour Office 'International Labour Conference Sixty-Third Session, Record of Proceedings, Report III (Part 1A), para 31 (1977), reaffirmed in 1987 Report, paras 19-24, and 1999 Report, para 8, cited in Cooney above n 24 at 377.
41. Langille, above n 17 at 49.
42. Leary, above n 19 at 42 ('the ILO system has been consistently praised as one of the best systems, and it has had results').
43. But see ILO Constitution art 33, which implicitly enables the ILO to authorize members to impose sanctions against a noncompliant state, invoked for the first time in 2000 against Burma for its practice of forced or compulsory labour.
44. Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum Age Convention (No. 138).
45. Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum Age Convention (No. 138).
46. Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum Age Convention (No. 138).
47. Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum Age Convention (No. 138).
48. Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum Age Convention (No. 138).
49. Forced Labour Convention (No. 29); Freedom of Association and Protection of the Right to Collective Bargaining Convention (No. 98); Equal Remuneration Convention (No. 100); Abolition of Forced Labour Convention (No. 105); Discrimination (Employment and Occupation) Convention (No. 111); Minimum Age Convention (No. 138).
50. See, generally, OECD, Trade, Employment and Labour Standards: A study of core workers' rights and international trade' (1996) (articulating five core labour standards, separating freedom of association from the right to organize and bargain collectively).
51. ILO, 'Declaration on Fundamental Principles and Rights at Work and Its Follow-Up' (1998), International Labour Conference, 86th Session, para 2. See generally Janice R. Bellace 'The ILO Declaration of Fundamental Principles and Rights at Work' (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 269; and H. Kellerson 'The ILO Declaration of 1998 on Fundamental Principles and Rights: A challenge for the future' (1998) 137 International Labour Review 223.
52. ILO, 'Declaration on Fundamental Principles and Rights at Work and Its Follow-Up' (1998), International Labour Conference, 86th Session, para 2. See generally Janice R. Bellace 'The ILO Declaration of Fundamental Principles and Rights at Work' (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 269; and H. Kellerson 'The ILO Declaration of 1998 on Fundamental Principles and Rights: A challenge for the future' (1998) 137 International Labour Review 223.
53. ILO, 'Declaration on Fundamental Principles and Rights at Work and Its Follow-Up' (1998), International Labour Conference, 86th Session, para 2. See generally Janice R. Bellace 'The ILO Declaration of Fundamental Principles and Rights at Work' (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 269; and H. Kellerson 'The ILO Declaration of 1998 on Fundamental Principles and Rights: A challenge for the future' (1998) 137 International Labour Review 223.
54. Some states, notably China and the US, refuse to ratify even these. To date, the US has only ratified one of these seven Conventions: the abolition of forced labour: see generally Justine Nolan and Michael Posner 'International Standards to Promote Labor Rights: The role of the United States government' (2000) 2 Columbia Business Law Review 529.
55. Richard Hyman 'Industrial Relations in Europe: Crisis or reconstruction? ' in Wilthagen, above n 15, 181-94 at 185.
56. See, for example, Minimum Age Convention 1973 (No. 138), art 1 (obligating states to 'raise progressively the minimum age for admission to employment'). See generally Servais above n 26.
57. See, for example, Minimum Age Convention 1973 (No. 138), art 1 (obligating states to 'raise progressively the minimum age for admission to employment'). See generally Servais above n 26.
58. Lance Compa 'Promise and Peril: Core labor rights in global trade and investment' in George Andreopoulos (ed), International Human Rights: A half century after the Universal Declaration (New York: Peter Lang Publishing forthcoming 2002) at 8. See also Robert M. Stern 'Labor Standards and Trade' in Marco Bronckers and Richard Quick (eds), New Directions in International Economic Law: Essays in Honour of John H. Jackson (The Hague: Kluwer Law International 2000) 425-38 at 426 (consensus on a core does not eliminate difficulties in 'interpreting and implementing core standards and distinguishing between core and other standards').
59. Lance Compa 'Promise and Peril: Core labor rights in global trade and investment' in George Andreopoulos (ed), International Human Rights: A half century after the Universal Declaration (New York: Peter Lang Publishing forthcoming 2002) at 8. See also Robert M. Stern 'Labor Standards and Trade' in Marco Bronckers and Richard Quick (eds), New Directions in International Economic Law: Essays in Honour of John H. Jackson (The Hague: Kluwer Law International 2000) 425-38 at 426 (consensus on a core does not eliminate difficulties in 'interpreting and implementing core standards and distinguishing between core and other standards').
60. Guy Mundlak 'The Transformative Weakness of Global Core Labor Rights in Changing Welfare Regimes' (on file with author).
61. I b i d.
62. Donald M. McRae 'The WTO in International Law: Tradition continued or new frontier?' (2000) 3 JIEL 27 at 29.
63. See Michael J. Trebilcock and Robert Howse, The Regulation of International Trade (2d ed.) (London: Routledge 1999) at 4 ('free international trade dramatically broadens the contract opportunity set available to private economic actors and hence the mutual gains realizable from exchange as parties with different endowments of specialized resources or skills are able to reap the gains from their differential advantages and disadvantages through trade').
64. See, respectively, Omnibus Trade and Competitiveness Act (1988); General System of Preferences Renewal Act (1984) s 503. For critique, see Philip Alston 'Labor Rights Provisions in US Trade Law: Aggressive unilateralism?' (1993) 15 Human Rights Quarterly 1 at 7-8 ('the form in which the standards are so bald and inadequate as to have the effect of providing a carte blanche to the relevant US government agencies, thereby enabling them to opt for whatever standards they choose to set in a given situation'); William E. Scheuerman 'False Humanitarianism? US advocacy of transnational labour protections' (2001) 8 Review of International Political Economy 358 at 368 (trade legislation 'on occasion functioned as a convenient legal front for perpetuating great power Realpolitik in precisely those parts of the world in which the US has long treated other members of the international community as second-class citizens').
65. See, respectively, Omnibus Trade and Competitiveness Act (1988); General System of Preferences Renewal Act (1984) s 503. For critique, see Philip Alston 'Labor Rights Provisions in US Trade Law: Aggressive unilateralism?' (1993) 15 Human Rights Quarterly 1 at 7-8 ('the form in which the standards are so bald and inadequate as to have the effect of providing a carte blanche to the relevant US government agencies, thereby enabling them to opt for whatever standards they choose to set in a given situation'); William E. Scheuerman 'False Humanitarianism? US advocacy of transnational labour protections' (2001) 8 Review of International Political Economy 358 at 368 (trade legislation 'on occasion functioned as a convenient legal front for perpetuating great power Realpolitik in precisely those parts of the world in which the US has long treated other members of the international community as second-class citizens').
66. See, respectively, Omnibus Trade and Competitiveness Act (1988); General System of Preferences Renewal Act (1984) s 503. For critique, see Philip Alston 'Labor Rights Provisions in US Trade Law: Aggressive unilateralism?' (1993) 15 Human Rights Quarterly 1 at 7-8 ('the form in which the standards are so bald and inadequate as to have the effect of providing a carte blanche to the relevant US government agencies, thereby enabling them to opt for whatever standards they choose to set in a given situation'); William E. Scheuerman 'False Humanitarianism? US advocacy of transnational labour protections' (2001) 8 Review of International Political Economy 358 at 368 (trade legislation 'on occasion functioned as a convenient legal front for perpetuating great power Realpolitik in precisely those parts of the world in which the US has long treated other members of the international community as second-class citizens').
67. See, respectively, Omnibus Trade and Competitiveness Act (1988); General System of Preferences Renewal Act (1984) s 503. For critique, see Philip Alston 'Labor Rights Provisions in US Trade Law: Aggressive unilateralism?' (1993) 15 Human Rights Quarterly 1 at 7-8 ('the form in which the standards are so bald and inadequate as to have the effect of providing a carte blanche to the relevant US government agencies, thereby enabling them to opt for whatever standards they choose to set in a given situation'); William E. Scheuerman 'False Humanitarianism? US advocacy of transnational labour protections' (2001) 8 Review of International Political Economy 358 at 368 (trade legislation 'on occasion functioned as a convenient legal front for perpetuating great power Realpolitik in precisely those parts of the world in which the US has long treated other members of the international community as second-class citizens').
68. Council Regulation No. 03281/94, OJ L 348, Council Regulation (EC) No. 2820/98 (21 December 1998).
69. On the nature and scope of EU redistribution, see Ronald L. Watts, The Spending Power in Federal Systems: A comparative study (Kingston: Institute of Intergovernmental Relations 1999), See André Sapir 'Symposium; Does Free Trade Require Fair Trade and Harmonisation? Introduction' (1995) 18 The World Economy 741 at 742-3 ('whatever harmonisation has been achieved in Europe, it could not have occurred without redistributive mechanisms between countries. In the absence of such mechanisms, the harmonisation of social policies cannot be contemplated internationally').
70. On the nature and scope of EU redistribution, see Ronald L. Watts, The Spending Power in Federal Systems: A comparative study (Kingston: Institute of Intergovernmental Relations 1999), See André Sapir 'Symposium; Does Free Trade Require Fair Trade and Harmonisation? Introduction' (1995) 18 The World Economy 741 at 742-3 ('whatever harmonisation has been achieved in Europe, it could not have occurred without redistributive mechanisms between countries. In the absence of such mechanisms, the harmonisation of social policies cannot be contemplated internationally').
71. Article 27. For critique, see Scheuerman, above n 43 at 374 ('NAFTA makes it easier for firms to out-source or shift production to areas with lax labour laws, or at least plausibly threaten to do so, thereby at the very least improving capital's bargaining position in relation to labour where labour rights and standards are likely to be most generous') (emphasis in original).
72. This description of the three 'pillars' of the system is adapted from Arthur E. Appleton, The World Trade Organisation: Implications for human rights and democracy (Thesaurus Acroasium 1998).
73. Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, WTO Agreement; Annex 2, 'Legal Documents - Results of the Uruguay Round', vol. 31 (1994), art 16, para 4, art 17, para 14. 'Consensus' is achieved if no member formally objects to the decision: art 2, para 4, n 1.
74. I b i d.
75. Some have pointed out, however, that certain domestic regulatory measures, such as domestic labour legislation, may make it 'more difficult for market penetration to take place' and therefore might form the basis of a complaint in the future: see Christopher McCrudden and Anne Davies 'A Perspective on Trade and Labor Rights' (2000) 3 JIEL 43 at 52.
76. For criticism along these lines, see Jagdish Bhagwati 'The Agenda of the WTO' in van Dijck and Faber, above n 4 at 27-59; T. N. Srinivasan, above n 4 at 219-43.
77. For criticism along these lines, see Jagdish Bhagwati 'The Agenda of the WTO' in van Dijck and Faber, above n 4 at 27-59; T. N. Srinivasan, above n 4 at 219-43.
78. Harald Grossman and George Koopmann 'Social Standards in International Trade: A New Protectionist Wave?' in Harald Sander and András Inotai (eds), World Trade After the Uruguay Round: Prospects and policy options for the twenty-first century (London: Routledge 1996) 115-33 at 116. See also Bob Hepple 'A Race to the Top? International investment guidelines and corporate codes of conduct' (1999) 20 Comparative Labor Law & Policy Journal 347 at 348 ('[u]ndervaluation means paying workers with comparable skills and productivity different wages simply by shifting demand for labor to a more disadvantaged group of workers who are unable to resist').
79. Harald Grossman and George Koopmann 'Social Standards in International Trade: A New Protectionist Wave?' in Harald Sander and András Inotai (eds), World Trade After the Uruguay Round: Prospects and policy options for the twenty-first century (London: Routledge 1996) 115-33 at 116. See also Bob Hepple 'A Race to the Top? International investment guidelines and corporate codes of conduct' (1999) 20 Comparative Labor Law & Policy Journal 347 at 348 ('[u]ndervaluation means paying workers with comparable skills and productivity different wages simply by shifting demand for labor to a more disadvantaged group of workers who are unable to resist').
80. Trebilcock and Howse, above n 42 at 136. See also Langille, above n 17 at 38 (a 'simple social dumping argument is, within economic theory, incoherent').
81. Trebilcock and Howse, above n 42 at 136. See also Langille, above n 17 at 38 (a 'simple social dumping argument is, within economic theory, incoherent').
82. See McCrudden and Davies, above n 50 at 49 and sources cited therein.
83. United Nations Conference on Trade and Development, Division on International Corporations and Development, World Investment Report, 1994: Transnational Corporations, Employment and the Workplace (1994) at xxvii; see also OECD, International Trade and Core Labour Standards (2000) at 31-42.
84. United Nations Conference on Trade and Development, Division on International Corporations and Development, World Investment Report, 1994: Transnational Corporations, Employment and the Workplace (1994) at xxvii; see also OECD, International Trade and Core Labour Standards (2000) at 31-42.
85. Stephen S. Golub, Labor Costs and International Trade (Washington DC: AEI Press 1999) at 48 ('[d]ifferences in wages largely reflect differences in labor productivity and are not a form of unfair competition').
86. Hepple, above n 52 at 348.
87. Duncan Campbell 'Labour Standards, Flexibility, and Economic Performance' in Wilthagen, above n 15, 229-43 at 237 ('[l]abour standards can remove narrow concerns and increase the acceptance of a trade reform agenda'); see generally Drusilla K. Brown 'International Trade and Core Labour Standards: A survey of the recent literature' (OECD Occasional Papers No. 43, 2000). The relation between labour costs and labour standards also turns on the standard in question. See McCrudden and Davies, above n 50 at 50 and sources cited therein (distinguishing between core labour rights and labour standards and arguing that efficiency gains associated with respecting labour rights offset their costs); but see Compa, above n 38 at 8 ('[f]reedom of association and the right to organize and bargain collectively are surely fundamental rights that must be protected in the international trading system, but they cannot be divorced from economic benefits').
88. Duncan Campbell 'Labour Standards, Flexibility, and Economic Performance' in Wilthagen, above n 15, 229-43 at 237 ('[l]abour standards can remove narrow concerns and increase the acceptance of a trade reform agenda'); see generally Drusilla K. Brown 'International Trade and Core Labour Standards: A survey of the recent literature' (OECD Occasional Papers No. 43, 2000). The relation between labour costs and labour standards also turns on the standard in question. See McCrudden and Davies, above n 50 at 50 and sources cited therein (distinguishing between core labour rights and labour standards and arguing that efficiency gains associated with respecting labour rights offset their costs); but see Compa, above n 38 at 8 ('[f]reedom of association and the right to organize and bargain collectively are surely fundamental rights that must be protected in the international trading system, but they cannot be divorced from economic benefits').
89. Duncan Campbell 'Labour Standards, Flexibility, and Economic Performance' in Wilthagen, above n 15, 229-43 at 237 ('[l]abour standards can remove narrow concerns and increase the acceptance of a trade reform agenda'); see generally Drusilla K. Brown 'International Trade and Core Labour Standards: A survey of the recent literature' (OECD Occasional Papers No. 43, 2000). The relation between labour costs and labour standards also turns on the standard in question. See McCrudden and Davies, above n 50 at 50 and sources cited therein (distinguishing between core labour rights and labour standards and arguing that efficiency gains associated with respecting labour rights offset their costs); but see Compa, above n 38 at 8 ('[f]reedom of association and the right to organize and bargain collectively are surely fundamental rights that must be protected in the international trading system, but they cannot be divorced from economic benefits').
90. Duncan Campbell 'Labour Standards, Flexibility, and Economic Performance' in Wilthagen, above n 15, 229-43 at 237 ('[l]abour standards can remove narrow concerns and increase the acceptance of a trade reform agenda'); see generally Drusilla K. Brown 'International Trade and Core Labour Standards: A survey of the recent literature' (OECD Occasional Papers No. 43, 2000). The relation between labour costs and labour standards also turns on the standard in question. See McCrudden and Davies, above n 50 at 50 and sources cited therein (distinguishing between core labour rights and labour standards and arguing that efficiency gains associated with respecting labour rights offset their costs); but see Compa, above n 38 at 8 ('[f]reedom of association and the right to organize and bargain collectively are surely fundamental rights that must be protected in the international trading system, but they cannot be divorced from economic benefits').
91. For capsule histories of the debate, see McCrudden and Davies, above n 50 at 44-8; Steve Charnovitz 'The Influence of International Labour Standards on the World Trading Regime: A Historical Overview' (1987) 126 International Labour Review 565; Robert Howse 'The World Trade Organization and the Protection of Workers' Rights' (1999) 3 Journal of Small & Emerging Business Law 131.
92. For capsule histories of the debate, see McCrudden and Davies, above n 50 at 44-8; Steve Charnovitz 'The Influence of International Labour Standards on the World Trading Regime: A Historical Overview' (1987) 126 International Labour Review 565; Robert Howse 'The World Trade Organization and the Protection of Workers' Rights' (1999) 3 Journal of Small & Emerging Business Law 131.
93. For capsule histories of the debate, see McCrudden and Davies, above n 50 at 44-8; Steve Charnovitz 'The Influence of International Labour Standards on the World Trading Regime: A Historical Overview' (1987) 126 International Labour Review 565; Robert Howse 'The World Trade Organization and the Protection of Workers' Rights' (1999) 3 Journal of Small & Emerging Business Law 131.
94. For scholarship on this reform possibility, see P. Waer 'Social Clauses in International Trade: The debate in the European Union' (1996) 30 Journal of World Trade 25 at 27-8; Erica de Wet 'Labor Standards in the Globalized Economy: The inclusion of a social clause in the General Agreement on Tariffs and Trade/World Trade Organization' (1995) 17 Human Rights Quarterly 443.
95. For scholarship on this reform possibility, see P. Waer 'Social Clauses in International Trade: The debate in the European Union' (1996) 30 Journal of World Trade 25 at 27-8; Erica de Wet 'Labor Standards in the Globalized Economy: The inclusion of a social clause in the General Agreement on Tariffs and Trade/World Trade Organization' (1995) 17 Human Rights Quarterly 443.
96. Trubek et al.
97. WTO, 'Singapore Ministerial Declaration' (1996), para 4.
98. The following draws from the work of Robert Howse. See for example Howse, above n 59; Howse and Mutua, above n 4.
99. The following draws from the work of Robert Howse. See for example Howse, above n 59; Howse and Mutua, above n 4.
100. United States - Restrictions on Imports of Tuna (Tuna/Dolphin II) (1994) (not adopted), para 5.8. See also United States - Restrictions on Imports of Tuna (Tuna/Dolphin I) (1993) (not adopted), para 5.14 ('Article III covers only those measures that are applied to the product as such'); United States Taxes on Automobiles (1994) (not adopted), para 5.54 ('Article III:4 does not permit treatment of an imported product less favourable than that accorded to a like domestic product, based on factors not directly relating to the product as such'); United States - Standards for Reformulated and Conventional Gasoline (1996) (Panel Report) (a distinction based on the quality of record keeping by producers is 'fundamentally inconsistent with the object and purpose of Article III').
101. United States - Restrictions on Imports of Tuna (Tuna/Dolphin II) (1994) (not adopted), para 5.8. See also United States - Restrictions on Imports of Tuna (Tuna/Dolphin I) (1993) (not adopted), para 5.14 ('Article III covers only those measures that are applied to the product as such'); United States Taxes on Automobiles (1994) (not adopted), para 5.54 ('Article III:4 does not permit treatment of an imported product less favourable than that accorded to a like domestic product, based on factors not directly relating to the product as such'); United States - Standards for Reformulated and Conventional Gasoline (1996) (Panel Report) (a distinction based on the quality of record keeping by producers is 'fundamentally inconsistent with the object and purpose of Article III').
102. United States - Restrictions on Imports of Tuna (Tuna/Dolphin II) (1994) (not adopted), para 5.8. See also United States - Restrictions on Imports of Tuna (Tuna/Dolphin I) (1993) (not adopted), para 5.14 ('Article III covers only those measures that are applied to the product as such'); United States Taxes on Automobiles (1994) (not adopted), para 5.54 ('Article III:4 does not permit treatment of an imported product less favourable than that accorded to a like domestic product, based on factors not directly relating to the product as such'); United States - Standards for Reformulated and Conventional Gasoline (1996) (Panel Report) (a distinction based on the quality of record keeping by producers is 'fundamentally inconsistent with the object and purpose of Article III').
103. United States - Restrictions on Imports of Tuna (Tuna/Dolphin II) (1994) (not adopted), para 5.8. See also United States - Restrictions on Imports of Tuna (Tuna/Dolphin I) (1993) (not adopted), para 5.14 ('Article III covers only those measures that are applied to the product as such'); United States Taxes on Automobiles (1994) (not adopted), para 5.54 ('Article III:4 does not permit treatment of an imported product less favourable than that accorded to a like domestic product, based on factors not directly relating to the product as such'); United States - Standards for Reformulated and Conventional Gasoline (1996) (Panel Report) (a distinction based on the quality of record keeping by producers is 'fundamentally inconsistent with the object and purpose of Article III').
104. For a comprehensive overview, see Robert E. Hudec 'The Product-Process Doctrine in GATT/WTO Jurisprudence' in Bronckers and Quick, above n 38, 187-217; Howse and Mutua, above n 4.
105. For a comprehensive overview, see Robert E. Hudec 'The Product-Process Doctrine in GATT/WTO Jurisprudence' in Bronckers and Quick, above n 38, 187-217; Howse and Mutua, above n 4.
106. See, for example, Robert Howse & Donald Regan 'The Product/Process Distinction - An illusory basis for disciplining "unilateralism" in trade policy' (2000) 11 European Journal of International Law 249; Steve Charnovitz 'Green Roots, Bad Pruning: GATT Rules and their application to environmental trade measures' (1994) 7 Tulane Environmental Law Journal 299.
107. See, for example, Robert Howse & Donald Regan 'The Product/Process Distinction - An illusory basis for disciplining "unilateralism" in trade policy' (2000) 11 European Journal of International Law 249; Steve Charnovitz 'Green Roots, Bad Pruning: GATT Rules and their application to environmental trade measures' (1994) 7 Tulane Environmental Law Journal 299.
108. United States - Standards for Reformulated and Conventional Gasoline (1996); Canada - Certain Measures Concerning Periodicals (1997). See generally Hudec, above n 65 at 187-217.
109. United States - Standards for Reformulated and Conventional Gasoline (1996); Canada - Certain Measures Concerning Periodicals (1997). See generally Hudec, above n 65 at 187-217.
110. United States - Standards for Reformulated and Conventional Gasoline (1996); Canada - Certain Measures Concerning Periodicals (1997). See generally Hudec, above n 65 at 187-217.
111. Sea Turtle Conservation Amendments to the Endangered Species Act, Pub. L. 101-162, sec. 609(b)(2)(A), 103 Stat. 988, 1037 (21 November 1989) (amending 16 USC § 1537 (1994)).
112. Report of the Appellate Body on U.S. Import Prohibition of Certain Shrimp and Shrimp Products (1998). The Appellate Body noted, at para 133, that 'in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for the purposes of Article XX(g)'. Compare Asif H. Qureshi 'Extraterritorial Shrimps, NGOs and the WTO Appellate Body' (1999) 48 International & Comparative Law Quarterly 199 at 204 (the opinion stipulates 'a nexus between the State and the object of environmental concerns'); Howard F. Chang 'Toward a Greener GATT: Environmental trade measures and the Shrimp - Turtle case' (2000) 74 Southern California Law Review 31 at 35 ('the reasoning in the opinion militates against any such jurisdictional requirement').
113. Report of the Appellate Body on U.S. Import Prohibition of Certain Shrimp and Shrimp Products (1998). The Appellate Body noted, at para 133, that 'in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for the purposes of Article XX(g)'. Compare Asif H. Qureshi 'Extraterritorial Shrimps, NGOs and the WTO Appellate Body' (1999) 48 International & Comparative Law Quarterly 199 at 204 (the opinion stipulates 'a nexus between the State and the object of environmental concerns'); Howard F. Chang 'Toward a Greener GATT: Environmental trade measures and the Shrimp - Turtle case' (2000) 74 Southern California Law Review 31 at 35 ('the reasoning in the opinion militates against any such jurisdictional requirement').
114. Report of the Appellate Body on U.S. Import Prohibition of Certain Shrimp and Shrimp Products (1998). The Appellate Body noted, at para 133, that 'in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for the purposes of Article XX(g)'. Compare Asif H. Qureshi 'Extraterritorial Shrimps, NGOs and the WTO Appellate Body' (1999) 48 International & Comparative Law Quarterly 199 at 204 (the opinion stipulates 'a nexus between the State and the object of environmental concerns'); Howard F. Chang 'Toward a Greener GATT: Environmental trade measures and the Shrimp - Turtle case' (2000) 74 Southern California Law Review 31 at 35 ('the reasoning in the opinion militates against any such jurisdictional requirement').
115. For discussion, see Chang, ibid at 36-8; see also Susan L. Sakma 'Free Trade and Sea Turtles: The international and domestic implications of the Shrimp/Turtles case' (1999) 10 Colorado Journal of International Environmental Law & Policy 345 at 345 (a WTO member can 'impose its domestic environmental regulations on another member so long as certain safeguards are met').
116. For discussion, see Chang, ibid at 36-8; see also Susan L. Sakma 'Free Trade and Sea Turtles: The international and domestic implications of the Shrimp/Turtles case' (1999) 10 Colorado Journal of International Environmental Law & Policy 345 at 345 (a WTO member can 'impose its domestic environmental regulations on another member so long as certain safeguards are met').
117. United States - Restrictions on Imports of Tuna (Tuna/Dolphin II) (1994) (not adopted); United States Restrictions on Imports of Tuna (Tuna/Dolphin I) (1993) (not adopted).
118. United States - Restrictions on Imports of Tuna (Tuna/Dolphin II) (1994) (not adopted); United States Restrictions on Imports of Tuna (Tuna/Dolphin I) (1993) (not adopted).
119. See Carrie Wofford 'A Greener Future at the WTO: The refinement of WTO jurisprudence on environmental exceptions to GATT' (2000) 24 Harvard Environmental Law Review 563.
120. See Sarah H. Cleveland 'Human Rights Sanctions and International Trade: A theory of compatibility' (2002) 5 JIEL 133 at 163 ('at least some core human rights norms should be embraced by the Article XX exceptions'); Hoe Lim Trade and Human Rights: What's at issue?' (2001) 35 Journal of World Trade 275 at 284 ('the provisions in Article XX appear to share much with some of the rights contained in the human rights covenants'); Robert Howse 'The World Trade Organization and the Protection of Workers' Rights' above n 59 at 143 (a 'dynamic interpretation of Article XX(a) as including labor rights might be based on textual evidence of international law's evolving concern with the social dimension of trade'); Adelle Blackett 'Whither Social Clause? Human rights, trade theory and treaty interpretation' (1999) 31 Columbia Human Rights Law Review 1 at 72 (Article XX(a) 'can be considered to encompass . . . fundamental international principles and rights at work').
121. See Sarah H. Cleveland 'Human Rights Sanctions and International Trade: A theory of compatibility' (2002) 5 JIEL 133 at 163 ('at least some core human rights norms should be embraced by the Article XX exceptions'); Hoe Lim Trade and Human Rights: What's at issue?' (2001) 35 Journal of World Trade 275 at 284 ('the provisions in Article XX appear to share much with some of the rights contained in the human rights covenants'); Robert Howse 'The World Trade Organization and the Protection of Workers' Rights' above n 59 at 143 (a 'dynamic interpretation of Article XX(a) as including labor rights might be based on textual evidence of international law's evolving concern with the social dimension of trade'); Adelle Blackett 'Whither Social Clause? Human rights, trade theory and treaty interpretation' (1999) 31 Columbia Human Rights Law Review 1 at 72 (Article XX(a) 'can be considered to encompass . . . fundamental international principles and rights at work').
122. See Sarah H. Cleveland 'Human Rights Sanctions and International Trade: A theory of compatibility' (2002) 5 JIEL 133 at 163 ('at least some core human rights norms should be embraced by the Article XX exceptions'); Hoe Lim Trade and Human Rights: What's at issue?' (2001) 35 Journal of World Trade 275 at 284 ('the provisions in Article XX appear to share much with some of the rights contained in the human rights covenants'); Robert Howse 'The World Trade Organization and the Protection of Workers' Rights' above n 59 at 143 (a 'dynamic interpretation of Article XX(a) as including labor rights might be based on textual evidence of international law's evolving concern with the social dimension of trade'); Adelle Blackett 'Whither Social Clause? Human rights, trade theory and treaty interpretation' (1999) 31 Columbia Human Rights Law Review 1 at 72 (Article XX(a) 'can be considered to encompass . . . fundamental international principles and rights at work').
123. See Sarah H. Cleveland 'Human Rights Sanctions and International Trade: A theory of compatibility' (2002) 5 JIEL 133 at 163 ('at least some core human rights norms should be embraced by the Article XX exceptions'); Hoe Lim Trade and Human Rights: What's at issue?' (2001) 35 Journal of World Trade 275 at 284
124. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes (1990); United States - Restrictions on Imports of Tuna (1991); United States - Restrictions on Imports of Tuna (1994).
125. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes (1990); United States - Restrictions on Imports of Tuna (1991); United States - Restrictions on Imports of Tuna (1994).
126. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes (1990); United States - Restrictions on Imports of Tuna (1991); United States - Restrictions on Imports of Tuna (1994).
127. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, ibid. See McGinnis and Movsesian, above n 23 at 579 (arguing that a least restrictive means test should be 'deployed with substantial deference to members' regulatory choices', whereby the WTO would 'determine that a less restrictive regulation is reasonably available only if the regulation achieves essentially the same objective as the trade restrictive regulation while using essentially the same amount of resources and not distorting any other objective').
128. Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, ibid. See McGinnis and Movsesian, above n 23 at 579 (arguing that a least restrictive means test should be 'deployed with substantial deference to members' regulatory choices', whereby the WTO would 'determine that a less restrictive regulation is reasonably available only if the regulation achieves essentially the same objective as the trade restrictive regulation while using essentially the same amount of resources and not distorting any other objective').
129. Trebilcock and Howse, above n 42 at 401 ('where a panel employs a least-restrictive means test in its application of Article XX, it should do so in a manner that reflects sensitivity to the fact that environmental policy-makers have limited resources, and often operate under broad background constraints imposed by the political and legal system in their country'). For a detailed examination, see Axel Desmedt 'Proportionality in WTO Law' (2001) 4 JIEL 441.
130. Trebilcock and Howse, above n 42 at 401 ('where a panel employs a least-restrictive means test in its application of Article XX, it should do so in a manner that reflects sensitivity to the fact that environmental policy-makers have limited resources, and often operate under broad background constraints imposed by the political and legal system in their country'). For a detailed examination, see Axel Desmedt 'Proportionality in WTO Law' (2001) 4 JIEL 441.
131. United States - Standards for Reformulated and Conventional Gasoline (1996) at 22.
132. Report of the Appellate Body on US - import Prohibition of Certain Shrimp and Shrimp Products (1998). See also united States - Standards on Reformulated and Conventional Gasoline (1996). The negotiation requirement has generated some controversy because it is unclear whether states can unilaterally impose such measures on other states. Compare Arthur E. Appleton 'Shrimp/Turtle: Untangling the nets' (1999) 2 JIEL 477 at 493 ('the need for a cooperative as opposed to a unilateral approach is among the central points of the Appellate Body's finding that the US measure constituted unjustifiable discrimination'); Wofford above n 72 at 573 ('the Appellate Body asserted that unilateral environmental policies are not only legitimate, but also to be expected under Article XX exceptions'), For criticism of the requirements see McGinnis and Movsesian, above n 23 at 594 (duty to negotiate requirement 'gives excessive power to centralized agencies and prevents a nation's citizens from protecting against adverse effects in their own environment').
133. Report of the Appellate Body on US - import Prohibition of Certain Shrimp and Shrimp Products (1998). See also united States - Standards on Reformulated and Conventional Gasoline (1996). The negotiation requirement has generated some controversy because it is unclear whether states can unilaterally impose such measures on other states. Compare Arthur E. Appleton 'Shrimp/Turtle: Untangling the nets' (1999) 2 JIEL 477 at 493 ('the need for a cooperative as opposed to a unilateral approach is among the central points of the Appellate Body's finding that the US measure constituted unjustifiable discrimination'); Wofford above n 72 at 573 ('the Appellate Body asserted that unilateral environmental policies are not only legitimate, but also to be expected under Article XX exceptions'), For criticism of the requirements see McGinnis and Movsesian, above n 23 at 594 (duty to negotiate requirement 'gives excessive power to centralized agencies and prevents a nation's citizens from protecting against adverse effects in their own environment').
134. Report of the Appellate Body on US - import Prohibition of Certain Shrimp and Shrimp Products (1998). See also united States - Standards on Reformulated and Conventional Gasoline (1996). The negotiation requirement has generated some controversy because it is unclear whether states can unilaterally impose such measures on other states. Compare Arthur E. Appleton 'Shrimp/Turtle: Untangling the nets' (1999) 2 JIEL 477 at 493 ('the need for a cooperative as opposed to a unilateral approach is among the central points of the Appellate Body's finding that the US measure constituted unjustifiable discrimination'); Wofford above n 72 at 573 ('the Appellate Body asserted that unilateral environmental policies are not only legitimate, but also to be expected under Article XX exceptions'), For criticism of the requirements see McGinnis and Movsesian, above n 23 at 594 (duty to negotiate requirement 'gives excessive power to centralized agencies and prevents a nation's citizens from protecting against adverse effects in their own environment').
135. Report of the Appellate Body on US - import Prohibition of Certain Shrimp and Shrimp Products (1998). See also united States - Standards on Reformulated and Conventional Gasoline (1996). The negotiation requirement has generated some controversy because it is unclear whether states can unilaterally impose such measures on other states. Compare Arthur E. Appleton 'Shrimp/Turtle: Untangling the nets' (1999) 2 JIEL 477 at 493 ('the need for a cooperative as opposed to a unilateral approach is among the central points of the Appellate Body's finding that the US measure constituted unjustifiable discrimination'); Wofford above n 72 at 573 ('the Appellate Body asserted that unilateral environmental policies are not only legitimate, but also to be expected under Article XX exceptions'), For criticism of the requirements see McGinnis and Movsesian, above n 23 at 594 (duty to negotiate requirement 'gives excessive power to centralized agencies and prevents a nation's citizens from protecting against adverse effects in their own environment').
136. Report of the Appellate Body on US - import Prohibition of Certain Shrimp and Shrimp Products (1998). See also united States - Standards on Reformulated and Conventional Gasoline (1996). The negotiation requirement has generated some controversy because it is unclear whether states can unilaterally impose such measures on other states. Compare Arthur E. Appleton 'Shrimp/Turtle: Untangling the nets' (1999) 2 JIEL 477 at 493 ('the need for a cooperative as opposed to a unilateral approach is among the central points of the Appellate Body's finding that the US measure constituted unjustifiable discrimination'); Wofford above n 72 at 573 ('the Appellate Body asserted that unilateral environmental policies are not only legitimate, but also to be expected under Article XX exceptions'), For criticism of the requirements see McGinnis and Movsesian, above n 23 at 594 (duty to negotiate requirement 'gives excessive power to centralized agencies and prevents a nation's citizens from protecting against adverse effects in their own environment').
137. Such as requirements of joint ownership by host states of foreign corporations and the domestic enforcement of anti-trust legislation against foreign firms doing business in the host state: see generally Cynthia Day Wallace, Legal Control of the Multinational Enterprise: National regulatory techniques and the prospects for international controls (The Hague: Martinus Nijhoff 1982), at 74-8 and 177-82.
138. Ibid at 34.
139. See, e.g. EEOC v Arabian American Oil Co. 499 US 244 (1991), quoting Foley Bros Inc v Filardo, 336 US 281 at 285 (1949) (it is a 'long-standing principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States').
140. See, e.g. EEOC v Arabian American Oil Co. 499 US 244 (1991), quoting Foley Bros Inc v Filardo, 336 US 281 at 285 (1949) (it is a 'long-standing principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States').
141. But see Andrew Clapham, Human Rights in the Private Sphere (Oxford: Oxford University 1993), at 89-113 (international organizations increasingly imposing international legal duties on private actors). See also Steven R. Ratner 'Corporations and Human Rights: A theory of legal responsibility' (2001) 111 Yale Law Review 442 (corporate international legal duties are a function of a corporation's relationship with government, its nexus to affected populations, the human right at issue, and the place of individual violators within the corporate structure).
142. But see Andrew Clapham, Human Rights in the Private Sphere (Oxford: Oxford University 1993), at 89-113 (international organizations increasingly imposing international legal duties on private actors). See also Steven R. Ratner 'Corporations and Human Rights: A theory of legal responsibility' (2001) 111 Yale Law Review 442 (corporate international legal duties are a function of a corporation's relationship with government, its nexus to affected populations, the human right at issue, and the place of individual violators within the corporate structure).
143. Barcelona Traction, Light and Power Company Limited [1970] ICJ 3 at 42.
144. See Universal Declaration of Human Rights, art 30 ('Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein'); International Covenant on Social, Cultural and Economic Rights, art 5 ('Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant'); art 5 of the International Covenant on Civil and Political Rights contains similar language.
145. Although international economic law is beginning to vest corporations with the capacity to sue states in certain circumstances. See North American Free Trade Agreement (17 December 1992), ch 11.
146. Cooney, above n 24, also points to the fact that national business associations make up one third of the membership of the ILO to account for the fact that the ILO has not directly targeted transnational corporate behaviour. But see Ratner, above n 82 at 478-9 (certain ILO conventions presuppose international legal duties on corporations).
147. Cooney, above n 24, also points to the fact that national business associations make up one third of the membership of the ILO to account for the fact that the ILO has not directly targeted transnational corporate behaviour. But see Ratner, above n 82 at 478-9 (certain ILO conventions presuppose international legal duties on corporations).
148. Sabel et al. above n 3 at 3.
149. Western countries opposed the draft because they thought it was lax in holding states accountable for rules on expropriation and intellectual property. The Commission was moved over to UNCTAD and began refocusing on the facilitation of foreign direct investment. See Mark Baker 'Private Codes of Corporate Conduct: Should the fox guard the henhouse?' (1992-3) 24 University of Miami Inter-American Law Review 399 at 411.
150. See, e.g. OECD, Guidelines for Multinational Enterprises (1976), Annex 1 to Declaration on International Investment and Multinational Enterprises (1976), revised (2000); UNCTAD, Code on Restrictive Business Practices (1980); ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (1977).
151. See, e.g. OECD, Guidelines for Multinational Enterprises (1976), Annex 1 to Declaration on International Investment and Multinational Enterprises (1976), revised (2000); UNCTAD, Code on Restrictive Business Practices (1980); ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (1977).
152. See, e.g. OECD, Guidelines for Multinational Enterprises (1976), Annex 1 to Declaration on International Investment and Multinational Enterprises (1976), revised (2000); UNCTAD, Code on Restrictive Business Practices (1980); ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (1977).
153. See EU standards for European Enterprises Operating in Developing Countries: Towards a European code of conduct (1998), adopted 15 January 1999.
154. See, e.g., the Canadian Code for companies with subsidiaries operating in South Africa (1985).
155. See, e.g., the US Sullivan Principles to promote racial equality practices in US transnational corporations operating in South Africa (1977) and the MacBride principles relating to fair employment practices in Northern Ireland (1984). For a discussion of the extent to which these codes created pressure to change national laws and changed conditions in companies directly, see Christopher McCrudden 'Human Rights Codes for Transnational Corporations: What can the Sullivan and MacBride principles tell us?' (1999) 19 Oxford Journal of Legal Studies 167. See also Kearney, above n 3, 205-20 at 213 ('the Sullivan principles are regarded by some as a good model for corporate codes of conduct in restrictive and repressive situations').
156. See, e.g., the US Sullivan Principles to promote racial equality practices in US transnational corporations operating in South Africa (1977) and the MacBride principles relating to fair employment practices in Northern Ireland (1984). For a discussion of the extent to which these codes created pressure to change national laws and changed conditions in companies directly, see Christopher McCrudden 'Human Rights Codes for Transnational Corporations: What can the Sullivan and MacBride principles tell us?' (1999) 19 Oxford Journal of Legal Studies 167. See also Kearney, above n 3, 205-20 at 213 ('the Sullivan principles are regarded by some as a good model for corporate codes of conduct in restrictive and repressive situations').
157. For a survey of international instruments that suggest an international human right to a living wage, see J.M. Spectar 'Pay Me Fairly Kathie Lee! The WTO, the right to a living wage, and a proposed protocol' (2000) 20 New York Law School Journal of International and Comparative Law 61 at 74-80.
158. See generally, Maria Gillen 'The Apparel Industry's Partnership's Free Labor Association: A solution to the overseas sweatshop problem or the emperor's new clothes?' (2000) 32 New York University Journal International Law and Policy 1059.
159. For discussion see Kearney, above n 3 at 218-19.
160. This description is adapted from Hepple, above n 52 at 357-8.
161. Reebok Code of Conduct, in Diane Orentlicher and Timothy Gelatt 'Public Law, Private Actors: The Impact of Human Rights on Business Investors in China' 14 Northwestern Journal of International Law & Business 66 at 108.
162. 'Memorandum from Levi Strauss & Co Regarding Business Partner Terms of Engagement and Guidelines for Country Selection' (1993), cited in Barbara A. Frey 'The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights' (1997) 6 Minnesota Journal of Global Trade 153 at 179 n 141.
163. 'Memorandum from Levi Strauss & Co Regarding Business Partner Terms of Engagement and Guidelines for Country Selection' (1993), cited in Barbara A. Frey 'The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights' (1997) 6 Minnesota Journal of Global Trade 153 at 179 n 141.
164. See Debora L. Spar, 'The Spotlight and the Bottom Line: How Multinationals Export Human Rights' (1998) 77(2) Foreign Affairs 7.
165. Blackett, above n 5 at 422.
166. Compa, above n 38 at 13.
167. Kearney, above n 3 at 211.
168. ILO Working Group on the Social Dimensions of the Liberalization of International Trade, 'Overview of Global Developments and Office Activities Concerning Codes of Conduct, Social Labelling and Other Private Sector Initiatives Addressing Labour Issues' (1998). See also OECD, 'Codes of Corporate Conduct: An inventory' (1999).
169. ILO Working Group on the Social Dimensions of the Liberalization of International Trade, 'Overview of Global Developments and Office Activities Concerning Codes of Conduct, Social Labelling and Other Private Sector Initiatives Addressing Labour Issues' (1998). See also OECD, 'Codes of Corporate Conduct: An inventory' (1999).
170. See Blackett, above n 5 at 420 ('By diverting attention to management monitoring systems, and away from classic voice mechanisms through labor-management dispute settlement machinery, [codes] run the risk of supplanting rather than buttressing democratic participation in the workplace'). See also Harry Arthurs 'Private Ordering and Workers' Rights in the Global Economy: Corporate codes of conduct as a regime of labour market regulation' in Conaghan et al. above n 8, 471-87 at 479 ('it is in the interests of transnational corporations to cosmeticize conflict, . . . pacify workers, [and] neutralize unions').
171. See Blackett, above n 5 at 420 ('By diverting attention to management monitoring systems, and away from classic voice mechanisms through labor-management dispute settlement machinery, [codes] run the risk of supplanting rather than buttressing democratic participation in the workplace'). See also Harry Arthurs 'Private Ordering and Workers' Rights in the Global Economy: Corporate codes of conduct as a regime of labour market regulation' in Conaghan et al. above n 8, 471-87 at 479 ('it is in the interests of transnational corporations to cosmeticize conflict, . . . pacify workers, [and] neutralize unions').
172. Robert Boyer 'The Changing Status of Industrial Relations in a More Interdependent World' in Wilthagen, above n 15, 35-65 at 51. For an assessment of recent developments relating to international collective bargaining, see Sophie Nunnelley 'Raising Labour Standards and Promoting Employee Voice: The new tool of international framework agreements' (April 2001, on file with author).
173. Robert Boyer 'The Changing Status of Industrial Relations in a More Interdependent World' in Wilthagen, above n 15, 35-65 at 51. For an assessment of recent developments relating to international collective bargaining, see Sophie Nunnelley 'Raising Labour Standards and Promoting Employee Voice: The new tool of international framework agreements' (April 2001, on file with author).
174. See generally David P. Forsythe, Human Rights in International Relations (Cambridge: Cambridge University Press 2000) at 198-9.
175. Compare Sabel et al., above n 3 at 3 ('public pressure may move only the most conscientious or publicly exposed corporations'). Corporations fearing negative publicity may also draft codes that focus only on those issues regarded as pressing by western consumers: see Blackett, above n 5 at 430 (noting predominant attention in codes to child labour).
176. Compare Sabel et al., above n 3 at 3 ('public pressure may move only the most conscientious or publicly exposed corporations'). Corporations fearing negative publicity may also draft codes that focus only on those issues regarded as pressing by western consumers: see Blackett, above n 5 at 430 (noting predominant attention in codes to child labour).
177. Boyer, above n 105 at 52.
178. Sabel et al., above n 3 at 3.
179. Compare Kearney, above n 3 at 208 ('[c]orporate codes of conduct are . . . no substitute for national legislation enacted and effectively implemented by governments or for international labour standards enforced around the world; neither can they be a substitute for the right of workers to organize and to bargain collectively with their employers; nor are they shortcuts to more equitable wages and better working conditions. Indeed, unless properly handled, codes of conduct may work to the disadvantage of those they were intended to help').
180. Sabel et al., above n 3 at 5.
181. Ibid at 6.
182. Ibid at 6.
183. Committee on Economic, Social and Cultural Rights, 'Statement on Globalization and Economic, Social and Cultural Rights' (1998).
184. OECD, Trade, Employment and Labour Standards: A study of core workers' rights and international trade' (1996); World Bank, 'Workers in a Changing World (in World Development Report, 1995)'; WTO, Singapore Ministerial Declaration (1996); UN Global Compact (2000).
185. OECD, Trade, Employment and Labour Standards: A study of core workers' rights and international trade' (1996); World Bank, 'Workers in a Changing World (in World Development Report, 1995)'; WTO, Singapore Ministerial Declaration (1996); UN Global Compact (2000).
186. OECD, Trade, Employment and Labour Standards: A study of core workers' rights and international trade' (1996); World Bank, 'Workers in a Changing World (in World Development Report, 1995)'; WTO, Singapore Ministerial Declaration (1996); UN Global Compact (2000).
187. OECD, Trade, Employment and Labour Standards: A study of core workers' rights and international trade' (1996); World Bank, 'Workers in a Changing World (in World Development Report, 1995)'; WTO, Singapore Ministerial Declaration (1996); UN Global Compact (2000).
188. Compare Leary, above n 19 at 29 (membership in the ILO implies 'a commitment to freedom of association . . . . explicit in the ILO Constitution and the Declaration of Philadelphia').
189. Compare Restatement (Third), Foreign Relations Law of the United States, s. 102(2) ('[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation').
190. See Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, WTO Agreement, Annex 2, 'Legal Documents - Results of the Uruguay Round' (1994), art 3.2 (purpose of dispute settlement is to clarify WTO rules 'in accordance with customary rules of international law'). See generally David Palmeter and Petros C. Mavroidis 'The WTO Legal System: Sources of law' (1998) 92 American Journal of International Law 4 (international conventions, custom, general principles of law, judicial teachings, and academic scholarship ought to inform the interpretation of WTO rules).
191. See Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, WTO Agreement, Annex 2, 'Legal Documents - Results of the Uruguay Round' (1994), art 3.2 (purpose of dispute settlement is to clarify WTO rules 'in accordance with customary rules of international law'). See generally David Palmeter and Petros C. Mavroidis 'The WTO Legal System: Sources of law' (1998) 92 American Journal of International Law 4 (international conventions, custom, general principles of law, judicial teachings, and academic scholarship ought to inform the interpretation of WTO rules).
192. See generally Howse and Mutua, above n 4; see specifically Janelle M. Diller and David A. Levy 'Child Labor, Trade and Investment: Toward the harmonization of international law' (1997) 91 American Journal of International Law 663 at 694 (international trade law must be harmonized with customary international law prohibiting exploitative forms of child labour).
193. See generally Howse and Mutua, above n 4; see specifically Janelle M. Diller and David A. Levy 'Child Labor, Trade and Investment: Toward the harmonization of international law' (1997) 91 American Journal of International Law 663 at 694 (international trade law must be harmonized with customary international law prohibiting exploitative forms of child labour).
194. For a much closer examination of the proportionality requirement as it relates to unilateral trade sanctions designed to promote human rights abroad, see Cleveland, above n 73 at 163-81.
195. Compare Clyde Summers 'The Battle in Seattle: Free trade, labor rights, and societal values' 22 University of Pennsylvania Journal of International Economic Law 61 at 69 ('[i]f an importing country could bar all imports from an exporting country on the claim of violation of one of the core labor rights, then such a claim obviously could be used as a pretext for protectionism; but if only specific imports could be barred on proof that they were produced in violation of these rights, the ability to use core labor rights for protectionist purposes would seem to be minimized').
196. Scheuerman, above n 43 at 362.
197. Compare Janelle Diller 'Marketing Social Justice: A new role for international organizations' (1999) 138 International Labour Review 99 at 126 (in the context of multilateral public regulation, advocating 'support through concrete and targeted programmes of technical assistance and guidance to enterprises, especially in developing countries, seeking to address the challenges inherent in developing and applying private sector initiatives').
198. W. Sengenberger 'Restructuring at the Global Level: The role of international labour standards' in W. Sengenberger and D. Campbell (eds), Creating Economic Opportunities: The role of labour standards in industrial restructuring (Geneva: International Institute for Labour Studies, 1994) at 403ff.
199. See Clean Clothes Campaign, 'Code of Labour Practices for the Apparel Industry' at II, cited in Gillen, above n 94 at 1083.
200. See Clean Clothes Campaign, 'Code of Labour Practices for the Apparel Industry' at II, cited in Gillen, above n 94 at 1083.
201. See Howard Chang 'Carrots, Sticks and International Externalities' (1997) 17 International Review of Law & Economics 309.
202. Howse and Regan, above n 66 at 282.
203. Compare McGinnis and Movsesian, above n 23 (a trade restrictive initiative must be (a) 'transparent': i.e. provide fair notice to affected firms in a public manner and allow firms an opportunity to comment before it takes effect; (b) performance-oriented, i.e. be expressed in terms of the objective it seeks to accomplish instead of the production processes that the regulated industries must employ; (c) consistent, i.e., consistent with regulations affecting comparable domestic products; and (d) be supported by objective evidence concerning the harm sought to be avoided).
204. David Weissbrod 'Principles Relating to the Human Rights Conduct of Companies' (working paper prepared for the sessional working group on the working methods and activities of transnational corporations of the Sub-Commission on the Promotion and Protection of Human Rights) (2000).
205. The draft principles also make reference to human rights outside of the employment relationship, such as the right of self-determination, consumer protection, environmental protection and war crimes.