Global Trade, Labour Rights and International Law

A Multilevel Approach

Aneta Tyc

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000395921
• Edition: 1
• Topic: Economics
• Subtopic: Labour Economics
• Index: Economics

This book provides a set of proposals for how best to guarantee effective enforcement of labour rights worldwide.

The linkage between labour standards and global trade has been recurrent for some 200 years. At a time when the world is struggling to find a way out of crisis and is striving for economic growth, more than ever there is a need for up-to-date research on how to protect and promote labour rights in the global economy. This book explores the history of the field and also provides an overview of emerging trends and opportunities. It discusses the most recent problems including: the effectiveness and the role of the International Labour Organization (ILO) in the second century of its existence, the World Trade Organization (WTO) and its potential relevance in the protection of labour rights, the effectiveness of the US and the EU Generalised System of Preferences, the impact of corporate social responsibility (CSR) instruments on labour rights, and labour provisions in the international trade agreements concluded by the US and the EU. The book argues, inter alia, that trade agreements seem to be a useful tool to help pave the way out of the crisis and that the United States–Mexico–Canada Agreement (USMCA) can be perceived as a model agreement and a symbol of a shift in perspective from long global supply chains to a focus on regional ones, local production, jobs and a rise in wages.

The book will be essential reading for academics and students in the fields of human rights law, international labour law, industrial relations law, international sustainable development law, international economic law and international trade law. It will also be of interest to practitioners, non-government organisations (NGOs) and policy makers.

1 The history of development of workers’ rights in the context of global trade rules

1 The pre-ILO era

The linkage between global trade and labour law was already assumed in David Ricardo’s theory on comparative costs dating back to the eighteenth century. At that time, in 1788, minister of finance of King Louis XVI – Baron Jacques Necker – claimed in his ‘De l’importance des opinions religieuses’ that the abolition of Sunday as a day of rest could provide a competitive advantage to a country if other countries did not act in the same way. Necker, however, was not the originator of the idea of international agreements to protect workers, but he was the first to notice that the question of workers’ protection was an international one. Then, many industrialists of the nineteenth century understood that countries that wished to improve the position of their working classes would be negatively affected by competition from other countries that did not. Some of them, for example, Daniel Legrand and Robert Owen, incited discussions about an international regulation of labour. Admittedly in the nineteenth century the state focused mainly on the legislation related to the reduction of working time in the civil service, where no risk of international competition existed, but some measures aimed at limiting child labour and night work by women in factories were taken.¹

1Arturo Bronstein, International and Comparative Labour Law: Current Challenges (Geneva: Palgrave Macmillan, International Labour Office 2009) 86; see the cited literature. See also: William H Meyer, ‘Testing Theories of Labor Rights and Development’ (2015) 37(2) Human Rights Quarterly 414, 415 <https://doi.org/10.1353/hrq.2015.0036> accessed 2 August 2020.

The Alsatian manufacturer Daniel Legrand was the first tenacious promoter of international labour legislation. His indefatigable activity was clearly visible between 1840 and 1848, when he addressed many appeals to British, Swiss, French and German statespeople and civil servants. He highlighted that the prosperity of a state was closely linked to the physical well-being and morality of its working class. He was also aware of the fact that compensation for abuses become a subject of negotiation between the governments of all industrial countries. Nevertheless, he warned that focusing all attention on wealth would lead to dramatic consequences, including the great mass of people deprived of trust in state institutions or even hostile to their state.²

2Antony Alcock, History of the International Labour Organisation (London, Basingstoke: Palgrave Macmillan 1971) 6; Nicolas Valticos, Droit international du travail (Paris: Dalloz 1983) 7–9.

Subsequently, some individual philanthropic manufacturers such as Robert Owen, the clergy, educators, economists and legislators reacted to the plight of the working class. Similarly to Daniel Legrand, they pointed out that values such as family life, human dignity and the health of the nation are equally or even more important than profits. However, the employers’ opposition was sufficient to defeat their efforts to introduce reforms. Attempts at justifying such opposition were related to economic grounds and were focused on the fact that ‘the reduction of hours of work and the prohibition of persons under a certain age from working in factories would raise the price of goods to the consumers, and home trade and prosperity would thereby be affected adversely since the cheaper foreign goods would be imported and flood the market’. The reformers had to tackle the problem that the establishment of humanitarian national legislation was hampered by international competition. The solution seemed clear to them and consisted in finding a way to undermine unlimited international competition by establishing global minimum standards for living conditions below which the worker should not be allowed to fall yet leaving the theory of comparative advantage intact. There is a general conviction that Robert Owen was the pioneer of international labour legislation, however, he was rather an advocate of labour legislation practised at international level. Having spent time in Glasgow among the working poor, Owen was preoccupied and saddened by the living and working conditions of its people. The Industrial Revolution, which began in England in the 1800s, caused these to be intolerable in many European countries. Owen carried out an experiment in New Lanark in Scotland, which was a manufacturing community of about 2,500 people. He put a permanent end to the ‘truck system’, according to which workers were paid partly or entirely in script redeemable only at company stores and establishments. Owen’s workers received wages. Moreover, he not only shortened hours of labour but also made provision for the workers’ leisure and the education of their children, and established cooperative marketing. The local bakery and store were run on a cooperative basis and sold goods below market value. He prohibited the labour of children under the age of ten and introduced free health care. His village became famous and he began to dream of a world filled with model communities, presenting his idealistic conception in a book entitled A New View of Society (1813). In 1818, with the aim of promoting his theories, he approached the Congress of the Holy Alliance at Aix-la-Chapelle, where he presented two Memorials suggesting that the Congress appoint a commission to visit New Lanark, adopt his idea and thus eliminate causes ‘which perpetually generate misery in human society’. Admittedly, initially the Congress did not take up his idea, but then he received a Bill passed by Parliament in 1819 limiting the hours in cotton factories that was ‘the real beginning of industrial legislation in England’.³ It was one of the most important pieces of legislation at that time, along with the Act passed by the English in 1802, which reduced to 12 hours a day the employment of children in the textile factories. This Act was the first one that introduced the principle of factory inspection, despite the fact that the predominant belief during that period promoted economic laissez-faire or free-for-all economic development.⁴

3Alcock (n 2) 5–6; Robert E Weir, Workers in America: A Historical Encyclopedia (Santa Barbara, Denver, Oxford: ABC-CLIO 2013) 565, vol 1: A-L; Valticos (n 2) 6.

4Kofi Addo, Core Labour Standards and International Trade: Lessons from the Regional Context (Heidelberg, New York, Dordrecht, London: Springer 2015) 79–80.

Notwithstanding the aforementioned, it should be indicated that Charles Frederick Hindley, a member of the British Parliament, is regarded as the founder of the idea of international labour legislation. He was described as having ‘a clear insight into the interdependence between nations that was created by foreign trade and international competition’.⁵ In 1833, Hindley proposed an international treaty on hours of work as a means of promoting such legislation in England. Shortly thereafter, in 1838–1839, Jérome Blanqui, a French liberal economist, wrote as follows about the need for harmonisation of labour legislation in European countries: ‘There is only one way of accomplishing it [the reform] while avoiding its disastrous consequences: this would be to get it adopted simultaneously by all industrial nations which compete in the foreign market’.⁶

5Virginia A Leary, ‘Workers’ Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, U.S. Laws)’ in Jagdish N Bhagwati and Robert E Hudec (eds), Fair Trade and Harmonization: Prerequisites for Free Trade? Volume 2 Legal Analysis (Cambridge, London: The MIT Press 1996) 184.

6Jérome A Blanqui, Cours d’économie industrielle 1838–1839 (Paris 1839), quoted from: Leary (n 5) 184.

The solution according to which finding a way to undermine unlimited international competition means establishing global minimum standards for living conditions below which the worker should not be allowed to fall yet leaving the theory of comparative advantage intact, was not the sole one. Another, namely international working-class action for the eight-hour day and restrictions on juvenile and child labour, was advocated by Marx and his followers in the First and Second Internationals. This international working-class action would provide ‘schools of class struggle’ with the goal of winning political power and establishing socialism. One of the two conclusions made in 1864 in the First International was that the workers in different countries needed to stand together in order to achieve better conditions and to prevent governments playing upon national prejudices to ‘squander in piratical wars the people’s blood and treasure’. The famous ‘Proletarians of all countries, Unite!’ was a reflection of this. The First International broke up in 1872 mainly because of premature attempts at establishing an international organisation of workers before these had developed solid organisations in their own countries. When the Second International was formed in 1889, it was caught on the issue of reform or revolution. On the one hand, it was aimed at sharing the cultural aspirations of surrounding society and enjoying its goods; while on the other hand, showing loyalty to a new order that might be created in the future, it denied approval and sought the end of that society. Besides, the members of the Second International spoke as if they were citizens of a world republic, and not citizens of particular countries, even if their leaders were leaders of parties functioning in those countries. Against this background, the conflict between national interest and supranational solidarity arose.⁷

7Alcock (n 2) 7–9.

The increasing pressure of international competition resulted in governments considering the problems of international labour legislation. In March 1889, the Swiss government proposed to organise a conference on i...