Common but differentiated debates: Environment, labour and the world trade organization

International and Comparative Law Quarterly

Volumn 45, Issue 3, 1996, Pages 592-632

  Ward, Halina ^a  

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EID: 85008816619     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300059376     Document Type: Article

References (187)

1. Source: statement by Ambassador Ismat Kittani, Report of the Working Party on the World Summit for Social Development, Doc. GB.261/10/21, ILO, Nov. 1994.
2. Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, reproduced in part at (1994) 33 I.L.M. 1125.
3. For the history see Hansson, Social Clauses and International Trade (1983), chap. 1.
4. Charnovitz, “The Influence of International Labour Standards on the World Trading Regime: An Overview” (1987) 126 I.L.R. 565.
5. Final Act, I.L.R., at p. 1144. The reference reads: “Recognising that their relations in the field of trade and economic endeavour should … [allow] for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.”
6. See the Decision on Trade and Environment, idem. p. 1267.
7. United States–Restrictions on Imports of Tuna, DS 21/R. 3 Sept. 1991.
8. For the background in the period leading up to the signing of the Final Act, see ICFTU Campaign for a Social Clause in GA TT: Media Coverage. ICFTU. Brussels, Mar. 1994.
9. Although the conclusions of the Chairman of the Trade Negotiations Committee of the Uruguay Round contain a reference to the importance attached by certain delegations to the relationship between the trade order and internationally recognised labour standards. And it appears that the run-up to the WTO's first Ministerial Conference in Singapore in December 1996 will see renewed pressure for the establishment of a WTO working party to look into the question of the links between international trade and working conditions. See e.g. The Global Challenge of International Trade: a Market Access Strategy for the European Union, communication to the Commission from Sir Leon Brittan and Messrs Marin, Bange-mann. van den Broek and Pinheiro, 8 Feb. 1996, p.18.
10. See e.g. FNV and INZET, Sustainable Trade: Towards Environmental and Labour Standards in International Agreements (May 1994)
11. Webb, After GA TT: Development and Labour Rights in the Global Economy. War on Want. 1994
12. Trade Working Group of the German NGO Forum on Environment and Development, Trade, the Environment and Development, German NGO Secretariat on Environment and Development, Bonn, July 1994.
13. The only academic studies of which the author is aware are Steve Charnovitz's pieces “The World Trade Organisation and Social Issues” (1994) 28 J.W.T. 17
14. “Environmental and Labour Standards in Trade” (1992) World Economy 335.
15. For an introduction see Jackson. The World Trading System: Law and Policy of International Economic Relations (1989).
16. This is not to suggest that sustainability is a supreme ideal. It is better understood as a prerequisite for the achievement of other human goals. See e.g. Elder, “Sustainability” (1991) 36 McGill LJ. 831.
17. The classic working definition is found in World Commission on Environment and Development, Our Common Future (1987), p.8, which defines sustainable development as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs”.
18. See e.g. Principle 10 of the Rio Declaration on Environment and Development (Rio Declaration), reproduced in Sands. Tarasofsky and Weiss (Eds). Documents in International Environmental Law. Vol.IIA (1994), p.49
19. World Commission, Documents in International Environmental Law. at chap.2.
20. Brown Weiss. “Our Rights and Obligations to Future Generations for the Environment” (1990) 84 A.J.I.L. 198 argues that intragenerational equity flows from intergener-ational equity since “were it otherwise, members of one generation could allocate the benefits of the world's resources to some communities and the burdens of caring for it to others and still potentially claim on balance to have satisfied principles of equity among generations”.
21. Integration of economic and environmental considerations is reflected in Principle 4 of the Rio Declaration, A.J.I.L. Para.6 of the Copenhagen Declaration and Programme of Action (advance unedited text, 20 Mar. 1995, on file with the author) provides: “We are deeply convinced that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development, which is the framework for our efforts to achieve a higher quality of life for all people.”
22. Preamble. Rio Declaration, A.J.I.L. and Preamble. Agenda 21. UN Doc.A/CONF.l51/26 (1992).
23. E.g. para.6 of the Copenhagen Declaration, Rio Declaration, A.J.I.L.
24. See also UNDP, “Towards Sustainable Human Development”. Human Development Report 1994. pp.13–21. for a “human welfare” focused vision of sustainable development.
25. On social aspects of European integration, see Mosley. “The Social Dimension of European Integration” (1990) 129 I.L.R. 147.
26. On environmental aspects, see Wilkinson. “Maastricht and the Environment” (1992) 4 J.E.L. 221.
27. North American Agreement on Labor Cooperation (1993) 32 I.L.M. 1499.
28. For an analysis of the labour side agreement in the context of the wider trade and social clause debate, see Van Dijk. “NAFTA and the North American Agreement on Labor Cooperation”, paper presented at a seminar on Trade Aid and Social Clauses at the Free University of Amsterdam. 19–20 May 1994 (on file with the author).
29. North American Agreement on Environmental Cooperation (1993) 32 I.L.M. 1480.
30. For an analysis of the environmental side agreement in the context of the broader trade and environment debate, see Esty, “Making Trade and Environmental Policies Work Together: Lessons from NAFTA”, in Cameron, Demaret and Geradin (Eds). Trade and Environment: the Search for Balance (1994).
31. For a critical survey of labour provisions in international commodity agreements see Kullman, “ ‘Fair Labour Standards’ in International Commodity Agreements” (1980) 14 J.W.T. 527, who argues that they are the outcome of protectionism, and do little to benefit exploited workers.
32. See also Van Liemt, “Minimum Labour Standards and International Trade: Would a Social Clause Work?” (1989) 128 I.L.R. 433,438.
33. Servais. “The Social Clause in Trade Agreements: Wishful Thinking or an Instrument of Social Progress?” (1989) 128 I.L.R. 423.
34. (1994) 33 I.L.M. 1014.
35. Idem. Art. 1(c).
36. For an overview of the environmental features of the Final Act. see Chamovitz, “The World Trade Organisation and Environmental Supervision”. International Environmental Reporter. 26 Jan. 1994, p.89.
37. International Environmental Reporter.
38. For a history of the “environmental” exceptions of Art.XX see Charnovitz. “Exploring the Environmental Exceptions in GATT Article XX” (1991) 25 J.W.T. 5,37.
39. For an account of the history of Art.XX(e). see Charnovitz. J.W.T. Apparently it exists because when GATT 1947 was being negotiated many countries maintained legislation restricting imports of the products of prison labour in order to protect domestic industry from unfair competition.
40. Final Act. p.69.
41. Idem. p.117.
42. Idem, p.229. Art.8.b.2(c).
43. Idem, p.283. Art.XIV(b). and the Decision on Trade in Services and the Environment.
44. Idem at p. 1255.
45. Indeed. The Economist (“A New Case for Greenery”. 3 June 1995) argues that environmentalists should not use economic justifications for “greenery”.
46. The distinction between questions of “competence” and “appropriateness” is also made by Roessler. in “The Competence of GATT” (1995) 29 J.W.T. 72. 83.
47. WTO Agreement. Art.1 1:1.
48. WTO Agreement. Art.VI:I and 2.
49. Idem. Art.III:I.
50. Idem. Preamble.
51. Although the GATT disciplines recognise the authority of sanctions applied externally, pursuant to UN structures and processes. See Art.XXI(c), GATT 1994.
52. GATT.
53. Charnovitz (1992). GATT. at p.348.
54. Final Act. Annex 1C. It goes a long way towards requiring harmonised intellectual property protection along the lines of a number of existing intellectual property conventions referred to in the Agreement. It has been suggested that the TRIPs Agreement is the “obvious model” for a social clause.
55. See Grey. “The International Labour System and “Labour Standards' ”. UNCTAD/MTN/RAS/CB. 11.5 Apr. 1994. para.34.
56. See e.g. FIELD. “Sustainable Development and Integrated Dispute Settlement in GATT 1994”. WWF International, June 1994.
57. See e.g. Trade, the Environment and Development, WWF International.
58. See e.g. FIELD, WWF International, and for a discussion of the issue within the Trade and Environment Committee.
59. see WTO Secretariat, “The WTO Trade and Environment Committee Takes up Transparency and Dispute Settlement”, in Trade and The Environment, PRESS/TE 003.22 May 1995.
60. See e.g. FIELD/NRDC. Environmental Priorities for the World Trading System (1995)
61. and ICDA Update on Trade Related Issues. No.18. Mar.-May 1995. ICDA. Brussels.
62. ICDA Update on Trade Related Issues.
63. United States–Restrictions on Imports of Tuna. DS29/R, June 1994.
64. United States–Taxes on Automobiles. DS31/R. 29 Sept. 1994.
65. United States–Standards for Reformulated and Conventional Gasoline. WT/DS2/R. 29 Jan. 1996.
66. See further Report on Trade and Environment to the OECD Council at Ministerial Level. COM/ENV/TD(95)48/FIN AL. OECD, 9 May 1995. paras.57–59, which distinguishes between three motivations for non-product-related production and processing method distinctions: environmental, competitiveness-based and value-based.
67. The US Child Deterrence Bill, which would ban US imports of products made by children under 15. is a case in point. See also “How to Make Lots of Money and Save the Planet too”. The Economist. 3 June 1995. p.75.
68. Alston. “Labor Rights Provisions in US Trade Law: ‘Aggressive Unilateralism’?” (1993) 15 H.R.Q. 1.
69. 1987, reproduced as amended at Copenhagen and London in Sands et al., H.R.Q. at p.189.
70. 1989, reproduced in idem, p.1075.
71. Washington, 1973, reproduced in idem, p.766.
72. Indeed, the concluding observations of the panel in Tuna II, at para.5.42. contain the following passage: “The Panel… had to resolve whether the contracting parties, by agreeing to give each other in Article XX the right to take trade measures necessary to protect the health and life of plants, animals and persons aimed at the conservation of exhaustible natural resources, had agreed to accord each other the right to impose trade embargoes for such purposes. The Panel had examined this issue in the light of the recognised methods of interpretation and had found that none of them lent any support to the view that such an agreement was reflected in Article XX.” However, strong arguments have been made that dispute-settlement panels could avail themselves of interpretative techniques which would not threaten measures adopted pursuant to multilateral environmental agreements. See e.g. Temple Lang. “The Problem Was Already Solved: GATT Panels and Public International Law”, Remarks of Co-Chairperson at an International Bar Association Conference on Trade and the Environment. Dublin, Nov. 1994.
73. Discussed in Charnovitz (1992). Remarks of Co-Chairperson at an International Bar Association Conference on Trade and the Environment.
74. and in Hansson. Remarks of Co-Chairperson at an International Bar Association Conference on Trade and the Environment. at pp. 17–18.
75. See Blackhurst and Subramanian. “Promoting Multilateral Cooperation on the Environment”, in Anderson and Blackhurst (Eds). The Greening of World Trade Issues (1992). p.247.
76. The distinction is also applied by Charnovitz (1994). The Greening of World Trade Issues.
77. See Wils. “Subsidiarity and EC Environmental Policy: Taking People's Concerns Seriously” (1994) 6 J.E.L. 85.
78. See further Stone, “Defending the Global Commons”, in Sands (Ed.). Greening International Law (1993).
79. See generally Esty. Greening the GA TT (1994). pp.142–145 and 105–108.
80. This undoubtedly correct point is made in Charnovitz (1994). Greening the GA TT. at p.21.
81. See e.g. Report on Trade and Environment, Greening the GA TT at paras.20–24.
82. and the draft OECD report Trade and Labour Standards. COM/DEELSA/TD(96)8. 16 Jan. 1996. paras.1 15–121.
83. Esty. the draft OECD report Trade and Labour Standards. at p.162. calls this a “political spillover”.
84. An ILO report (The Social Dimensions of the Liberalisation of World Trade, Doc.GP.261/WP/SLD/l, Nov. 1994. para.22) considers the debate about social dumping to be pointless because “in different ways and on both sides it is based on false premises, in particular on the idea of equalising social costs”.
85. See further ILO. World Employment 1995, p.73.
86. OECD. World Employment, at paras. 128–134.
87. See French. “Pollution Havens”, in Costly Tradeoffs: Reconciling Trade and the Environment. Worldwatch Paper 113,1993.
88. See further GATT Secretariat. “Trade and the Environment”. International Trade 90–91. p.29
89. Report on Trade and Environment, International Trade. at para.48.
90. For an analysis of the causes of non-compliance with ILO conventions, see Landy. The Effectiveness of International Supervision: Thirty Years of ILO Experience (1966).
91. OECD. The Effectiveness of International Supervision: Thirty Years of ILO Experience. at paras.87–95. sets out a range of economic arguments for non-observation of “core labour standards”.
92. Hansson. The Effectiveness of International Supervision: Thirty Years of ILO Experience. at pp.167–171.
93. Constitution of the International Labour Organisation and Standing Orders of the International Labour Conference, ILO, Geneva, Dec. 1994.
94. See generally Ghebali, The International Labour Organisation: A Case Study on the Evolution of UN Specialised Agencies (1989), chap. III.
95. The International Labour Organisation: A Case Study on the Evolution of UN Specialised Agencies. at s.1(a).
96. Idem, s.II.
97. See Lee. “The Declaration of Philadelphia: Retrospect and Prospect” (1994) 133 I.L.R. 466 for an analysis of the Declaration in relation to economic policy.
98. Ghebali. I.L.R., at p.63. notes: “For the first time, an organisation was proclaiming the impossibility of separating social and economic objectives, and indeed affirming the preeminence of the social dimension in economic planning.” If full integration of economic and labour concerns is to be achieved in the interests of sustainable development, however, the constitution of the ILO should be revisited. Section IV of the Philadelphia Declaration says that “the fuller and broader utilisation of the world's productive resources necessary for the achievement of the objectives set forth in this Declaration can be secured by effective international and national action, including measures to expand production and consumption”. Even the Preamble to the WTO Agreement is. on its face, more directly supportive of sustainable development.
99. E.g. Ward. “Trade and Environment in the Round–and After” (1994) 6 J.E.L. 263. 281–286.
100. E.g. the comments of the US government delegate in the ILO working party on the Social Dimensions of the Liberalisation of International Trade. ILO Doc.GB.261/WP/SDL/RP. Nov. 1994. pp.37–38.
101. See generally Emmerij. “The Employment Problem and the International Economy” (1994) 133 I.L.R. 449.
102. For a general introduction see Frances Cairncross. “Workshop of the World?”, Analysis. BBC Radio 4,8 July 1993 (transcript on file with the author).
103. Khor, Why CATT and the WTO Should not Deal with Labour Standards. Third World Network, Apr. 1994.
104. Blackhurst and Subramanian. Third World Network.
105. E.g. as employed in the 1982 UN Convention on the Law of the Sea. Arts. 136 and 137 (extracts in Sands et al. Third World Network, at p.356). In treaties that do not deal with the global commons the term “common concern of humankind” is preferred.
106. See e.g. the Preamble to the Convention on Biological Diversity, in Sands et al. idem, p.845.
107. McGee. “The Moral Case for Free Trade” (1995) 29 J.W.T. 69 argues that any kind of trade restriction is morally wrong because it violates rights–specifically the rights of adults to buy “what they want from whomever they want at whatever price they can agree upon”. For McGee the right of an individual not to be forced to labour has the same importance as the right of a consumer to shop.
108. See further Barcelona Traction I.C.J. Rep. 1970.3. paras.33–34, where the ICJ identified certain human rights creating obligations erga omnes. All States have a legal interest in the protection of these rights. The question that arises is the extent to which it should be permissible for States unilaterally to impose trade restrictions to express this legal interest.
109. See further De la Cruz. “‘International Labour Law: Renewal or Decline?” (1994) Int. J. Comp. Labour Law and Industrial Relations (Autumn) 201, 217.
110. Constraints on the Unilateral Use of Trade Measures to Enforce Environmental Policies. 8 Apr. 1994.
111. See e.g. Pennartz, “Looking for Alternatives and Additional Tools: Focus on Transnational Companies and Their Own ‘Codes of Conduct’: An Instrument for Better Working and Living Conditions for Workers in the North and the South?”, contribution to IRENE workshop. Brussels. 1 and 2 Dec. 1994 (on file with the author)
112. “Human Rights”, The Economist. 3 June 1995. The UK company B&Q applies environmental global sourcing guidelines. Ideally, sourcing guidelines should be developed through processes in which workers and individuals as well as businesses are accorded a meaningful role.
113. For a background, see Christian Aid, Pulling the Rug on Poverty: Child Workers in the Indian Carpet Industry (Nov. 1994).
114. (1992) O.J. L99/1 (11 Apr.).
115. The TBT Agreement applies to technical regulations and standards. In respect of standards (compliance with which is not mandatory and which, for the purposes of the Agreement are produced by “recognised” bodies). Art.4 provides that members “shall take such reasonable measures as may be available to them to ensure that… nongovernmental standardising bodies within their territories … accept and comply with” the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to the Agreement. See also Tietje, “Voluntary Eco-Labelling Programmes and Questions of State Responsibility in the WTO/GATT Legal System” (1995) 29 J.W.T. 123.
116. Free Traders Put Pressure on EC Eco-Labelling Scheme. ENDS Report 237. Oct. 1994.
117. See e.g. European Commission. Communication to the Council and to the Parliament on Trade and Environment, 28 Feb. 1996, p.15. which calls for the development of a WTO transparency regime applicable to both governmental and nongovernmental schemes.
118. Dawkins. “Ecolabelling: Consumers' Right to Know or Restrictive Business Practice”. Review Draft. Sept. 1995 (on file with the author) recommends that eco-labelling schemes broaden their scope to include social criteria.
119. See e.g. ILO, World Labour Report 1992–1993.
120. ILO Governing Body. Record Number of Cases of Violation of Freedom of Association. ILO Press Release. 19 Oct. 1992.
121. For further examples, see Upfront. No.10. Autumn 1994.
122. the journal of War on Want, and Christian Aid. Record Number of Cases of Violation of Freedom of Association.
123. The UK e.g. contravened Convention No.87 on Freedom of Association and Protection of the Right to Organise when it banned trade unions at the intelligence-gathering unit. Government Communications Headquarters (GCHQ). See ILO Governing Body, 234th Report of the Committee on Freedom of Association. 1984. Case No. 1261.
124. A selection of contemporary proposals can be found in: European Parliament Resolution on the introduction of a social clause in the unilateral and multilateral trading system. European Parliament Doc.A3–0007/94. 9 Feb. 1994
125. Motion for a Resolution on the conclusion of the Uruguay Round and the future activities of the WTO, European Parliament Doc.B4–0464/94. 8 Dec. 1994
126. Memorandum de la Présidence sur la dimension sociale du commerce international. EU Council Doc.5295/95 SOC 83 COMER 36 GATT 56, Brussels, 22 Mar. 1995
127. Bell, GATT and a Social Chapter: Labour's Proposals for the World Trade Organisation. June 1994 (on file with the author)
128. ICFTU, The Social Clause: Rationale and Operating Mechanisms and International Workers' Rights and Trade: The Need for Dialogue. Sept. 1994
129. International Metalworkers' Federation, Trade and Workers' Rights: Time for a Link. IMF. 1988.
130. One exception is Trade, the Environment and Development, Trade and Workers' Rights: Time for a Link.
131. For the texts see Blanplain (Ed.). International Encyclopedia for Labour Law and Industrial Relations.
132. Van Liemt. International Encyclopedia for Labour Law and Industrial Relations. at p.437, surveys eight different proposals for a social clause. All eight refer to Conventions 87,98 and 138.
133. International Encyclopedia for Labour Law and Industrial Relations
134. Discussed in FNV and INZET. International Encyclopedia for Labour Law and Industrial Relations. at pp. 19–22. The economic criteria do not relate to notions of “dumping” but to development concerns: namely the extent to which the application of a particular convention affects the competitive position of developing countries.
135. ICFTU, The Social Clause, International Encyclopedia for Labour Law and Industrial Relations.
136. ILO report. International Encyclopedia for Labour Law and Industrial Relations. at para.24. takes a similar approach. If this question is taken as a starting point the effects that trade liberalisation itself has on social progress can be downplayed. Therefore, it should be accompanied by social impact assessment of trade liberalisation. This already falls within the ILO's mandate.
137. See the Philadelphia Declaration, International Encyclopedia for Labour Law and Industrial Relations, at s.II.
138. ILO report, International Encyclopedia for Labour Law and Industrial Relations. at para.28.
139. Idem, para.29.
140. This draws on the analysis in OECD. Idem. at Part I. which not only identifies a number of “core” conventions, but also sets out 14 categories into which the ILO groups existing conventions, concluding that “a hierarchy can be discerned among these Conventions, even though the ILO does not make one”. “First-level” conventions, according to the report, are those representing minimum norms which should be respected by all. and whose implementation does not rely on other conventions. Second-level conventions establish rules that help improve working conditions, minimum wages, social benefits and workers' participation in the determination of their labour conditions.
141. Idem. para.8.
142. See ILO. Standard-Setting Policy: The Promotion of Basic Human Rights Conventions. GB.262/LILS/4, Mar.-Apr. 1995.
143. ICFTU, International Workers' Rights, Standard-Setting Policy: The Promotion of Basic Human Rights Conventions.
144. In The Social Clause, Standard-Setting Policy: The Promotion of Basic Human Rights Conventions. ICFTU suggests that trade sanctions “should probably be increased tariffs”.
145. For an excellent summary see Van Liemt. The Multilateral Social Clause in 1994, ICDA Draft Discussion Paper, Aug. 1994, p.2.
146. For an account of the advantages and shortcomings of the ILO processes see Landy, ICDA Draft Discussion Paper.
147. Art.l9(3) of the ILO constitution is cited to support this. See para.6.1, Delhi Declaration, Fifth Conference of Labour Ministers of Non-Aligned and Other Developing Countries, New Delhi, 19–23 Jan. 1995.
148. The Report of the Director-General to the 81st session of the International Labour Conference in 1994, Defending Values, Promoting Change, states that one of the premises upon which the ILO is based in reliance upon co-operation rather than coercion in its efforts to promote social progress (p.58). However, practice apart, Art.33 of the ILO's constitution could provide a theoretical basis for the imposition of trade sanctions in the event of a member failing to carry out recommendations specified in the report of a commission of inquiry or a decision of the IGJ. This is supported by Landy, idem, p.179, although he raises the question of whether sanctions should be authorised through the UN Security Council.
149. Idem, Art.22.
150. See generally Daoudi and Dajani, Economic Sanctions (1983)
151. Alston, “International Trade as an Instrument of Positive Human Rights Policy” (1982) 4 H.R.Q. 155,168
152. Kohona. The Regulation of International Economic Relations Through Law (1985), chap.7.
153. See e.g. “Suffer the Little Children's Goods”, The Economist, 14 Aug. 1993, which argues that if a carpet factory employing children can no longer export, the children may go to work in an industry that doesn't produce internationally traded goods, such as brickmakbegging or prostitution.
154. See also The Economist, The Economist.
155. Khor. The Economist.
156. See further Berthelot, “Covert and Overt Reasons for a Social Clause” (1995) 2 I.C.D.A.J.
157. Landy, I.C.D.A.J.
158. ICFTU, The Social Clause, I.C.D.A.J.
159. See e.g. The Social Dimensions of International Trade: Joint Statement by World Trade Union Confederations, ICFTU, WCL and ETUC. Feb. 1994, which envisages increased tariffs levied by all WTO members.
160. See e.g. Servais. The Social Dimensions of International Trade: Joint Statement by World Trade Union Confederations, at pp.431–432, who talks of the consequences of exploitation of labour in exporting industries for “certain industries in an importing country”. Servais suggests a mediation and joint investigation procedure for dealing with disputes, and that, as a last resort, “the parties would be free to take whatever unilateral economic measures they considered appropriate”.
161. A Misereor Discussion Paper. Social Clauses in International Trade Law, 1994 (on file with the author) suggests that trade sanctions be linked to specific products, arguing that this could limit the danger of protectionist misuse of social clauses.
162. See further Defending Values, Social Clauses in International Trade Law, at p.63.
163. Daoudi and Dajani. Social Clauses in International Trade Law, at p.166.
164. See ICFTU, The Social Clause, Social Clauses in International Trade Law.
165. Social Clauses in International Trade Law. at Art.3.
166. See e.g. Edgren, “Fair Labour Standards and Trade Liberalisation” (1979) 118 I.L.R. 523. who points out that the most blatant cases of exploitation and deprivation are usually found in plantations and mines, construction industries and small service firms working entirely for the domestic market.
167. An alternative integrative approach, that sees a role for trade restrictive actions “only as a last resort”, is set out in De Castro. Trade and Labour Standards: Using the Wrong Instruments for the Right Cause, UNCTAD Discussion Paper No.99, May 1995. De Castro advocates the negotiation of a new global convention on core labour standards of universal value. He sees in global conventions on environmental problems, such as the Biodiversity Convention, examples of how “the sharing of moral concerns on a global scale can be dealt with through a convention encouraging appropriate sharing of the burden to find solutions within a development context”.
168. See further Defending Values, UNCTAD Discussion Paper No.99. at p.62. where it is suggested that an incentive to ratify a new convention within the ILO would be the pledge of ratifying States not to resort to unilateral trade restrictions. This is cynical indeed when the WTO exists in large measure precisely to prevent protectionist use of unilateral trade restrictions.
169. ILO report. UNCTAD Discussion Paper No.99. at p.12. The report cites one advantage of such an approach as its multilateral nature, but refers also to its “complexity and uncertainties”, stating that “this type of solution would not enable any trade measures undertaken to be applied in a strictly uniform and multilateral manner”.
170. The difficulties of establishing verification and certification systems in relation to non-product-related production and processing methods have been considered in the trade and environment context. See Report on Trade and Environment. UNCTAD Discussion Paper No.99, at paras.63–65. The difficulties in the trade and labour context may be even greater.
171. E.g. Charnovitz (1994). UNCTAD Discussion Paper No.99. at p.23. points out that whilst the failure of a nation to cease production of CFCs can make it difficult for other nations to reach their own environmental goals, the failure of a nation to outlaw child labour does not prevent other nations from doing so. Economic spillovers and the threat of a “downward spiral” do not appear to be taken into consideration in this argument.
172. See e.g. Alston, UNCTAD Discussion Paper No.99.
173. Cf. Charnovitz (1994). UNCTAD Discussion Paper No.99. who argues that labour rights can facilitate democratisation but environmental standards do not. although democratic government may be a prerequisite for attending to the environment.
174. BISD 25 Supp.203 (1980). See also the Final Act's Decision on Measures in Favour of Least-Developed Countries, UNCTAD Discussion Paper No.99, at p.1248.
175. US Trade and Tariff Act of 1984, Title V. See further “Jakarta Eases Curbs on Workers in Attempt to Avoid US Penalty”, Guardian. 16 Feb. 1994. The US has also attached labour conditionality to eligibility criteria within the bilateral Caribbean Basin Initiative and in relation to investment insurance provided by the Overseas Private Investment Corporation.
176. See further Charnovitz. Guardian.
177. “US Backs Funds for Green Jobs in Third World”. Financial Times. 21 Apr. 1994.
178. (1994) O.J. L348/1 (31 Dec).
179. Idem, Art.7.
180. Cf. the Commission's draft regulation ((1994) O.J. C333/9 (29 Nov.)).
181. which contained a fully worked system of preferential arrangements, and the European Parliament's amendments ((1994) O.J. C341/243 (5 Dec.)), which sought to extend the special incentive arrangements to other ILO conventions on equal treatment of men and women and to apply them from 1 Jan. 1996.
182. O.J. at Arts.7.1 and 8.1.
183. Arts.9–14. The first investigation pursuant to these provisions, which relates to alleged forced labour practices in Myanmar, is currently under way. See Notice of Initiation of an Investigation of Forced Labour Practices Being Carried out in Myanmar in View of a Temporary Withdrawal of Benefits from the European Union's Generalised Scheme of Preferences (1996) O.J. C15/3 (20 Jan.).
184. Charnovitz, O.J.
185. Discussions have taken place between the EU Commission and the WTO, as well as with UNCTAD. Source: ICDA Update on Trade Related Issues. No.17. Nov. 1994-Feb. 1995. ICDA. Brussels.
186. Abraham Katz. of the US Council for International Business, has made a similar suggestion in relation to labour standards. See the minutes of the ILO working party, ICDA Update on Trade Related Issues. at p.17.
187. Although the Montreal Protocol's non-confrontational non-compliance procedure gets close. The working group responsible for drawing up the non-compliance regime prepared an indicative list of measures that might be taken by a meeting of the parties in respect of non-compliance with the Protocol, which includes a reference to “[suspension, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, of specific rights and privileges under the Protocol, whether or not subject to time limits, including those concerned with … trade”: reproduced in Sands et al. ICDA Update on Trade Related Issues. at p.244. However, the non-compliance procedure itself is silent on the question of enforcement mechanisms.