Linking trade and labor standards: Prioritizing the right of association

Cornell International Law Journal

Volumn 39, Issue 3, 2006, Pages 641-653

  Lieberwitz, Risa L ^a  

^a and History   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33947731969     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (57)

1. See Elissa Alben, GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link, 101 COLUM. L. REV. 1410, 1410-16 (2001) (discussing the shift from early discussions of linkage, which focused on assuring fair wages, to current linkage advocacy emphasizing human rights standards);
2. Andrew T. Guzman, Trade, Labor, Legitimacy, 91 CALIF. L. REV. 885, 886-93 (2003);
3. Robert Howse, The World Trade Organization and the Protection of Workers' Rights, 3 J. SMALL & EMERGING BUS. L. 131, 148-66 (1999).
4. See, e.g., Marisa Anne Pagnattaro, Leveling the Playing Field: Labor Provisions in CAFTA, 29 FORDHAM INT'L L.J. 386, 417-30 (2006);
5. Marley S. Weiss, Two Steps Forward, One Step Back - Or Vice Versa: Labor Rights Under Free Trade Agreements from NAFTA, Through Jordan, via Chile, to Latin America, and Beyond, 37 U.S.F.L. REV. 689 (2003);
6. J. F. Hornbeck, The U.S.-Central America Free Trade Agreement (CAFTA): Challenges for Sub-Regional Integration, CRS Report for Congress (June 1, 2004), available at http://fpc.state.gov/documents/organization/33747. pdf;
7. Chantell Taylor, NAFTA, GATT, and the Current Trade System: A Dangerous Double Standard for Workers' Rights, 28 DENV. J. INT'L. L. & POL'Y 401 (2000).
8. For a thorough discussion of arguments against trade/labor linkage, see Christian Barry & Sanjay G. Reddy, Just Linkage: International Trade and Labor Standards, 39 CORNELL INT'L L. J. 545 (2006).
9. See also Keith E. Maskus, Should Core Labor Standards Be Imposed Through International Labor Policy?, Policy Research Working Paper #1817, at 1-2, World Bank Development Research Group (Aug. 1997), at http://www.worldbank.org/research/trade/wp1817.html.
10. Barry & Reddy, supra note 3, at 564; see also JAGDISH BHAGWATI, IN DEFENSE OF GLOBALIZATION 240-52 (2004).
11. Barry & Reddy, supra note 3.
12. Id. at 548. Barry and Reddy describe their focus on "basic labor standards," which "refer to a specified level of attainment of labor standards that is deemed minimally adequate." Id. They further explain that such basic standards "may be conceived in terms of the 'core' labor standards promoted by the ILO," consisting of "freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation." Id. For discussion of defining labor standards, see Maskus, supra note 3, at 4-8.
13. Barry and Reddy label this "Proposition O," which states: "whether an institutional arrangement for the governance of the global economy should be viewed as superior to another is whether it improves the level of advantage of less advantaged persons in the world to a greater extent. Barry & Reddy, supra note 3, at 548.
14. Id.
15. Id. at 587. Barry and Reddy propose the transfer of subsidies from rich to poor countries to help developing countries defray the costs of raising labor standards. Id. at 603.
16. See MANFRED B. STEGER, GLOBALIZATION: A VERY SHORT INTRODUCTION 31-36, 48-51 (2003). While profit maximization is important to employers, retention of power and control over the business and the workforce is equally important. As Justice Holmes stated, "[t]he only prize much cared for by the powerful is power. The prize of the general is not a bigger tent, but command."
17. THE ESSENTIAL HOLMES: SELECTIONS FROM THE LETTERS, SPEECHES, JUDICIAL OPINIONS, AND OTHER WRITINGS OF OLIVER WENDELL HOLMES, JR. 146 (Richard A. Posner ed., 1992). Identifying the two goals of wealth and power is essential to creating an agenda for labor reform. Redistribution of wealth without redistributing decision-making power may achieve some form of economic fairness but will not ensure workplace democracy.
18. See Risa L. Lieberwitz, Contingent Labor: Ideology in Practice, in FEMINISM CONFRONTS HOMO ECONOMICUS 324, 325 (Martha Albertson Fineman & Terence Dougherty eds., 2005).
19. Id.
20. BARRY BLUESTONE AND BENNETT HARRISON, THE DEINDUSTRIALIZATION OF AMERICA: PLANT CLOSINGS, COMMUNITY ABANDONMENT, AND THE DISMANTLING OF BASIC INDUSTRY 25-34 (1982) .
21. See id. at 25-48; Fran Ansley, Standing Rusty and Rolling Empty: Law, Poverty, and America's Eroding Industrial Base, 81 GEO. L.J. 1757, 1775-82 (1993).
22. See Micheline Maynard, Toyota Said to Be Considering 4 Southern States for New Plant, N.Y. TIMES, Apr. 15, 2006, at C1;
23. Steve Lohr, Nissan Uses Japan's Ways In Tennessee, N.Y. TIMES, Apr. 4, 1983, at D11;
24. No Union Seen In Nissan Plant, N.Y. TIMES, Mar. 30, 1983, at D5.
25. BEVERLY J. SILVER, FORCES OF LABOR: WORKERS' MOVEMENTS AND GLOBALIZATION SINCE 1870, at 137-38, 145-46 (2003); STEGER, supra note 10, at 31-32.
26. SILVER, supra note 15, at 154-55.
27. For an excellent discussion of the reasons for and impact of the "deindustrialization" of the United States, see Ansley, supra note 13, at 1758-82. See also SILVER, supra note 15, at 48-49.
28. Maskus, supra note 3, at 4, 9-13, describing poor working conditions in export processing zones, which exist in more than 70 countries and are defined by the United Nations Conference on Trade and Development as "a well-defined geographical area, enjoying customs privileges and other incentives, in which the primary activity is processing of goods for export." Id. at 9-10. See also Elvia R. Arriola, Voices from the Barbed Wires of Despair: Women in the Maquiladoras, Latina Critical Legal Theory, and Gender at the U.S.-Mexico Border, 49 DE PAUL L. REV. 729 (2000);
29. Lance Compa & Jeffrey S. Vogt, Labor Regulation and Trade: Labor Rights in the Generalized Systems of Preferences: A 20-Year Review, 22 COMP. LAB. L. & POL'Y J. 199 (2001);
30. Tina Rosenberg, Globalization, N.Y. TIMES, Aug. 18, 2002, at sec. 6, page 28.
31. See STEGER, supra note 10, at 40-43; Guy Brucculeri, A Need to Refocus the Mandate of the International Monetary Fund and the World Bank, 17 W.R.L.S.I. 53, 70-73 (2004);
32. Risa L. Lieberwitz, Confronting Privatization and Commercialization of Academic Research: An Analysis of Social Implications at the Local, National, and Global Levels, 12 IND. J. GLOBAL LEG. STUD. 109, 140-44 (2005).
33. For descriptions of labor standards included in trade agreements, see Pagnattaro, supra note 2, at 387-406, 417 (describing the core labor standards, including the right of association and collective bargaining, prohibitions on forced labor or child labor, minimum wages, and safety and health protections, mandated by the U.S. Congress in the Trade Act of 2002 and the Bipartisan Trade Promotion Authority for inclusion in U.S. trade agreements. The author argues that the United States-Central American Trade Agreement does not fully comply with this Congressional mandate); Taylor, supra note 2, at 416-17 (describing the labor standards in the North American Agreement on Labor Cooperation, which is the labor side agreement to the North American Free Trade Agreement).
34. For critiques of voluntary "corporate codes of conduct," see Bob Hepple, A Race to the Top? International Investment Guidelines and Corporate Codes of Conduct, 20 COMP. LAB. L. & POL'Y J 347, 357-60 (1999).
35. For a defense of the utility of corporate codes of conduct, see Kamil Ahmed, International Labor Rights - a Categorical Imperative?, 35 R.D.U.S. 145, 172-80 (2004).
36. Cf. Harry Arthurs, Reinventing Labor Law for the Global Economy: The Benjamin Aaron Lecture, 22 BERKELEY J. EMP. & LAB. L. 271, 275-76 (2001) (discussing the fact that "unlike capital, goods, or information, workers generally do not move across national borders in our global economy").
37. See Pagnattaro, supra note 2, at 388-90.
38. See Barry and Reddy, supra note 3, at 632-34.
39. Id.
40. See Christopher L. Erickson & Daniel J.B. Mitchell, Labor Standards and Trade Agreements, 19 COMP. LAB. L. & POL'Y J. 145, 161 (1998) (concluding that "much of the American trade expansion with Mexico is due to the unilateral decision of the Mexican government in the late 1980s to liberalize the economy and to abandon an earlier protectionist policy. NAFTA was a ratification in treaty terms of this change within Mexico, not the cause of it.").
41. See Barry and Reddy, supra note 3, at 548-49, 555-65 (providing an extensive discussion of the opponents' arguments).
42. 167 Mass. 92, 104-09 (1896).
43. "One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way." Id. at 108.
44. Section 1, "Findings and declaration of policy," of the National Labor Relations Act, states, in part: "Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury . . . by restoring equality of bargaining power between employers and employees." 29 U.S.C. § 151 (2005).
45. Cf. Lowell Turner & Richard W. Hurd, Building Social Movement Unionism: The Transformation of the American Labor Movement, in REKINDLING THE MOVEMENT: LABOR'S QUEST FOR RELEVANCE IN THE 21ST CENTURY 9, 11 (Lowell Turner et al. eds., 2001) (defining social movement unionism as "a type of unionism based on member involvement and activism").
46. See Ansley, supra note 13, at 1765-72 (discussing the shift of U.S. jobs to the service sector and the growth of the contingent work force).
47. See Steven Greenhouse, Unions Focus Attention on Workers in Service Industries, N.Y. TIMES, June 16, 2006, at C1.
48. See, e.g., Jim Wilson, From "Solidarity" to Convergence: International Trade Union Cooperation in the Media Sector;
49. David Jessup & Michael E. Gordon, Organizing in Export Processing Zones: The Bibong Experience in the Dominican Republic;
50. Larry Cohen & Steve Early, Globalization and De-Unionization in Telecommunications: Three Case Studies in Resistance, in TRANSNATIONAL COOPERATION AMONG LABOR UNIONS 202-22 (Michael E. Gordon & Lowell Turner eds., 2000).
51. See Ansley, supra note 13, at 1782-84, 1891-92 (describing the Ohio-based Farm Labor Organizing Committee's cooperative project with Mexican workers).
52. See Lance Compa, Assessing Assessments: A Survey of Efforts to Measure Countries' Compliance with Freedom of Association Standards, 24 COMP. LAB. L. & POL'Y J. 283, 283-85 (2003) (discussing the complexities of defining the scope and content of the right of association and in measuring rates of compliance with freedom of association standards).
53. For a countervailing argument advocating the use of the WTO to enforce core labor standards, see Ahmed, supra note 21, at 164-70.
54. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments-Results of the Uruguay Round vol. 31, 33 I.L.M. 81 (1994).
55. See Lieberwitz, supra note 19, at 140-41.
56. See Susan K. Sell, TRIPS and the Access to Medicines Campaign, 20 WIS. INT'L. L.J. 481, 485-89 (2002).
57. For critiques of the ILO as being a weak and ineffectual institution due to its tripartite structure and its lack of enforcement powers, see Sean Cooney, Testing Times for the ILO: Institutional Reform for the New International Economy, 20 COMP. LAB. L. & POL'Y J. 365 (1999).