FIRMES DEPORTIVOS

According to the 19th_{century economist and politician George Campbell, “two}

great discoveries have been made in the science of government: the one is the immense advantage of abolishing restrictions on trade; the other is the absolute necessity of imposing restrictions upon labour.”231 _{At the time it was felt}

that only the latter warranted a form of institutionalized cooperation between states. International labour law was thus seen as an important mechanism to facilitate economic globalization. In fact, it was even contemplated whether international labour law was conceptually part of international economic law.232 _{The establishment of the International Labour Organization in 1919}

invoked similar comments. Although theILOhad no role in the development

of international trade and investment law, it was nonetheless perceived as an international economic organization.

The debates on the features of international labour law during its formative years still resonate today. What is the purpose of this area of international law? How should treaties be monitored and enforced? And to what extent

229 Manfred Weiss, ‘International Labour Standards: A Complex Public-Private Policy Mix’ (2013) 29 The International Journal of Comparative Labour Law and Industrial Relations 7, 9-10.

230 Ibid.

231 George Campbell (Duke of Argyll),The Reign of Law(4rd American edn, George Routledge & Sons 1873) 334-335.

232 Georg Schwarzenberger, ‘The Principles and Standards of International Economic Law’ (1966) 117 Recueil des Cours 1, 8.

should different levels of economic development be reckoned with?233_These

issues remain relevant for theILO, which faces some important challenges in the wake of its 2019 centenary, but also for the body of international labour law that has developed outside the organization, including labour provisions in trade and investment agreements. In this regard, the question of monitoring and enforcement is of particular relevance, as trade-labour linkages are some- times portrayed as ‘more effective’ than theILOsupervisory procedures. The

latter are premised on “the sanction of publicity” instead of “the economic weapon”.234_{This was a deliberate decision, as the}

ILO’s founders had to find

a balance between two objectives. On the one hand, there was a need for meaningful standards that did not reflect the lowest common denominator. On the other hand, differences in levels of economic development between members had to be taken into account.

Although theILO’s supervisory mechanism was not premised on the use

of economic countermeasures,ILO member states that were – for whatever

reason – displeased with the level of labour standards of anotherILOmember

could unilaterally resort to such measures. The legality of labour-related trade measures is a matter for international trade law. With the establishment of theGATT, and later theWTO, a legal framework was established which con- strains the ability of states to apply trade measures in order to induce other states to improve their labour standards. The extent of these constraints will be examined in the following chapter.

233 Malcolm Delevingne, ‘The Pre-War History of International Labor Legislation’ in James Shotwell (ed)The Origins of the International Labor Organization(Columbia University Press 1934) at 39.

234 B.H. Sumner, ‘Review of International Labour Legislation by H.J.W. Hetherington’ (1921) 31 The Economic Journal 84, 85.

3.1 INTRODUCTION

When looking at the work of the World Trade Organization (WTO), one may

get the impression that trade-labour linkage has never progressed beyond the ivory towers of academia. Its only official statement on the subject is the Ministerial Declaration of 1996, in which theWTOmember states declared that theILOis the sole competent body to deal with labour standards.1_{The dicho-}

tomy between trade and labour that the Singapore Declaration embraced is remarkable. As was discussed in chapter 2, both legal regimes were historically linked and mutually supportive of each other’s purposes. International labour law was intended to reap the benefits of international trade without com- promising the efficacy of domestic social legislation. And trade policy has been concerned with labour issues since the abolition of the slave trade in the early 19th_{century and was actively used to induce low-standard trade partners to}

improve their domestic labour legislation.2

Part 3.2 of this chapter examines the conceptual relationship between trade and labour from the perspective of trade law, and will map the history of attempts to link the two in multilateral trade law. Importantly, the debate on the role of labour standards in multilateral trade law does not depend on the existence of specific labour provisions. States can, and sometimes do adopt trade-restrictive measures that respond to concerns with foreign labour stand- ards irrespective of an explicit provision in multilateral trade law that man- dates such actions. They could adopt import bans against products made by child workers, award social labels to products that are not made by child workers, or implement comprehensive economic sanctions against countries that violate international labour standards on a systematic and widespread scale. The question is, however, whether such measures are compliant with

WTOlaw. As a preliminary matter, part 3.3 examines whether it is possible

to perceive low labour standards as unfair trade practices, and consequently as actionable underWTOlaw. Part 3.4 is concerned with the legality of uni-

lateral labour-related trade measures underWTOlaw. Part 3.5 describes the

1 World Trade Organization, ‘Singapore Ministerial Declaration’ (18 December 1996) WT/ MIN(96)/DEC. This statement was renewed at the Doha Conference in 2001.

2 Steve Charnovitz, ‘The Influence of International Labour Standards on the World Trading Regime: A Historical Overview’ (1987) 126 International Labour Review 565.

operation and legality of labour rights conditionality in the Generalized System of Preferences, by which the United States and the European Union unilaterally grant trade benefits to developing countries.