Labour provisions in EU trade agreements: What potential for channelling labour standards‐related capacity building?

• Published date: 01 September 2016
• Date: 01 September 2016
• DOI: http://doi.org/10.1111/j.1564-913X.2015.00036.x
• Author: Franz Christian EBERT

Copyright © The author 2016

Journal compilation © International Labour Organization 2016

International Labour Review, Vol. 155 (2016), No. 3

Labour provisions in EU

trade agreements: What potential

for channelling labour standards-related

capacity building?

Franz Christian EBERT*

Abstract. The labour provisions of the EU’s trade agreements have been of

limited effectiveness as a means of enforcing labour standards within the jur-

isdictions of the respective parties. However, the author argues, these provi-

sions could serve other useful purposes in this regard. In particular, he focuses

on their potential as a framework for channelling capacity-building activities

relating to labour standards through the EU’s development cooperation in-

struments. He also considers options for increasing the potential effectiveness

of labour provisions in framing capacity-building activities through a change

in their design, particularly by reducing the parties’ discretion in applying the

relevant provisions.

In recent years, signicant headway has been made regarding the linkage

of trade and labour concerns. After the rejection of a multilateral “social

clause” in the WTO’s 1996 Singapore Declaration,

1

the idea of inserting provi-

sions relating to labour standards (hereinafter “labour provisions”) into trade

instruments was declared dead by some, but it has returned through the back

door.2 Spurred by the deadlock at the multilateral level, numerous bilateral

* Research Fellow, Max Planck Institute for Comparative Public Law and International

Law, Heidelberg, email: ebert@mpil.de. Parts of this article draw on research that was conducted

in the framework of the ILO’s Project on Social Dimensions of Free Trade Agreements. The au-

thor is grateful to Raffaela Kunz, Claire La Hovary, Desiree LeClercq, Axel Marx, Myriam Oehri,

Rafael Peels, Ximena Soley, Lore Van den Putte, Jeffrey Vogt and two anonymous peer reviewers

for comments and suggestions on earlier drafts of this paper.

Responsibility for opinions expressed in signed articles rests solely with their authors, and

publication does not constitute an endorsement by the ILO.

1 See the Singapore Ministerial Declaration adopted on 13 December 1996 (WT/MIN(96)/

DEC).

2 See, for example, Maupain (2013, pp. 135 et seq.), Peels and Fino (2015) and Agustí-Panareda,

Ebert and LeClerq (2015, pp. 349–352). For a more elaborate denition of the term “labour provi-

sions”, see Ebert and Posthuma (2 009, p. 64).

International Labour Review408

and regional trade agreements have indeed included labour provisions (see

ILO, 2013, pp. 19–21; Siroën, 2013, pp. 88–93).3 A signicant number of these

provisions are to be found in EU trade agreements,4 often integrated into a

chapter on “trade and sustainable development”, hereinafter referred to as

“sustainable development chapters” (Burgoon, 2009; ILO, 2013 and 2016; Van

den Putte and Orbie, 2015). The question which arises, however, concerns the

practical implications of these provisions and whether they can actually inu-

ence labour standards in the countries concerned.

So far, much of the debate has concentrated on the potential of such

provisions for enforcing labour standards obligations, notably through com-

plaint and dispute settlement mechanisms, economic sanctions and polit-

ical (“peer”) pressure (examples include Hepple, 2005; Greven, 2005; Vogt,

2014). By contrast, other potential effects of these provisions have received

less attention. This holds particularly true of their potential for building and

strengthening the capacities of domestic labour institutions and civil soci-

ety actors in trade partner countries (exceptions include Polaski, 2004; ILO,

2013; Oehri, 2015a and 2015b). This dimension deserves attention, however,

because the question of whether or not labour standards decits are rem-

edied does not depend exclusively on the political will of policy-makers but

also on other factors such as the state’s capacity to carry out relevant gov-

ernance activities, including labour inspections and the effective adjudica-

tion of labour disputes (see Polaski, 2004, p. 22; but see also Geref and

Mayer, 2005, p. 56; Kolben, 2011, pp. 427–428; Banks, 2011, p. 64). Also, the

enforcement mechanisms pertaining to labour provisions in trade agree-

ments tend to be activated very rarely (see, for example, Scherrer et al.,

2009, pp. 14 –15; ILO, 2013, pp. 43 and 51; Oehri, 2015b, pp. 742–744). This

underscores the need for a better understanding of the other dimensions

of these provisions.

The labour provisions of trade agreements concluded by the United

States and Canada have in a number of cases led to signicant capacity build-

ing in regard to labour standards through development cooperation (ILO, 2013,

pp. 80–84).5 But what of the relevant provisions contained in EU trade agree-

ments? Funding under the EU’s development cooperation framework has in-

creased (Holland and Doidge, 2012) and now amounts to several billion euros

3 The issue of labour standards is also relevant in the context of the negotiation of the so-

called megaregional trade agreements such as the Transatlantic Trade and Investment Partnership

(TTIP) and the Transpacic Partnership (TPP); see, for example, Lee (201 5, pp. 5–6).

4 While many of the relevant EU agreements cover numerous issues apart from trade rules,

this article refers to them, for reasons of conciseness, as “trade agreements” or “agreements”. Also,

they are referred to as “EU” agreements even though some of them were concluded by what was

then the European Community.

5

In particular, under the US–Central America–Dominican Republic Free Trade Agreement,

funds for labour-related capacity building amounted to some US$85 million between 2005 and

2010 (USDOL, 2009, Annex 2).