Workers' Rights vis-à-vis the WTO: Do We Need a Paradigm Shift?

• Date: 01 January 2008

Workers’ Rights vis-à-vis the WTO:

Do we need a paradigm shift?

HA RSHI TA BHA TNA GAR AND VINAY V. MISH RA*

Introduction

Established in 1919,1the International Labour Organization (ILO) has

given birth to more than 180 bin ding con ventions2and 190 nonbinding

resolutions,3on subjects ranging from human rights to occupational safety.4

Despite being one of the oldest pedigrees in international law, however, the

ILO’s enforcement record has proved woeful.

One of the initial problems for this dismal performance can be attributed

to the fact that differing groups of countries have ratified different treaties,

creating a patchwork of inconsistent legal obligations.5Moreover, wherever

such a legal obligation does apply, the ILO’s pro visions for enfo rcement

favour fact-finding and reporting over sanctions. Although the ILO

constitution authorises sanctions in the event of noncompliance, the

language is vague: “In the event of any Member failing to carry out within

the time specified in the recommendations … any other Member may take

against that Member the measures of an economic character indicated … as

appropriate to the case.”6

* Ms Harshita B hatnagar and Mr Vinay V. Mishra are both final year st udents of a

B.A. LL.B (Hons) in Gujarat National Law University, Gandhinagar, India.

1Constitution Of The International Labour Organization, Treaty of Versailles, 28 June

1919, Part XIII, 49 Stat. 2713, 225 Consol. T.S. 189, 373 [hereinafter ILO Constitution].

2International Labour Organization, The ILO What It Is What It Does at p 14 from

http://w ww.ilo.org/pub lic/engl ish/burea u/inf/dow nload/bro chure/pd f/page14. pdf.

Accessed on 3 March 2009.

3Ibid.

4Eg Convention Concerni ng Occupational Safety and Health and the Working

Environment, adopted 22 June 1981, 1331 U.N.T.S. 279 (No. 155) (ILO) [hereinafter

Occupational Safety and Health Conv ention]; Con vention Conc erning Working

Conditions in Hotels, Restaurants, and Similar Establishments, adopted 25 June

1991, 1820 U.N.T.S. 445 (No. 172) (ILO) [hereinafter Working Conditions (Hotels

& Restaurants) Convention ]; Convention Concerning Labou r Inspection in

Agriculture, adopted 25 June 1969, 812 U.N.T.S. 88 (No. 129) (ILO) [hereinafter

Labour Inspection ( Agriculture) Con vention]; Conven tion Concerning Food and

Catering for Crews on Board Ship, adopted 27 June 1946, 164 U.N.T.S. 37 (No. 68)

(ILO) [hereinafter Food & Catering (Ships’ Crews) Convention].

5The current lists of ratifications of these conventions are found at http://www.ilo.org/

ilolex/english/convdisp1.htm . Last accessed on 29 January 2009 at 7:45 pm.

6Constitution Of The International Labour Organization, Treaty of Versailles, 28 June

1919 art. 419, 49 Stat. at 2729, 225 Consol. T.S. at p 382.

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Consequently, the ability of the ILO and other labour i nstitutions to

safeguard labour rights across the globe still remains to be seen.

In this research paper, the authors aim to discuss at length how a linkage

of trade and labour rig hts can lead to a much needed boost to the

enforcement and maintenance of core labour standards in the changing

world order. It is argued that the same can be achieved by a systematic

inclusion of labour standards within the WTO framework.

The paper is divided into five parts. Part I gives a general overview of the

history of the issues of workers’ rights within the agendas of international

trade institutions. Part II deals with the establi shment of the crucial link

between labour standards and international trade giving a multidimensional

view of the problem. This is done by a two way approach: A. examining the

respective impact of unilateral and bilateral tr ade agreements and WTO

mechanisms on labour measures within contracting states; and B. a

consideration of the rift between the developing and the developed nations

on the issue of such a linkage. Part III of the paper attempts to put forward

a case for the proposed “WTO-Labour” integration by scrutinising the

reasons for the current WTO regime’s failure to protect labour rights.

Subsequently, the authors deal with each of the arguments against the said

“trade-labour” linkage and move on to establish that there is an inevitable

need to negotiate the integration as soon as possible. Part IV of the paper

sketches a possible compromise that could satisfy all the stakeholders and

clear th e path for the proposed “labour clause” within the WTO frame -

work. Lastly, in part V, the paper concludes by urging the opponents of the

“trade-labour ” linkage to approach the is sue with a bro adened and

futuristic perspective that would be instrumental in shaping of an equitable

and harmonious world.

Workers’ Rights And International Trade Institutions:

Past, Present & Future

The Havana Charter,7the precursor of the International Trade Organization

(ITO), was the first major trade agreement to acknowledge the existence of

a relationship between labour standards and international trade. Article 7(1)

of the Charter recognized that fair labour standards would lead to greater

productivity and advancement in labour conditions.8It necessitated the

removal of unfair labour conditions that created barriers to inter national

trade. The Charter also recognised the need to co-operate with the

International Labour Organization (ILO) on labour-related issues.9After the

7Havana Charter for an International Trade Organization, U.N. Doc.E/Conf.2/78 (24

March 1948).

8Havana Charter, article 7.1 (Fair Labour Standards).

9Havana Charter, article 7.2.

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