Fundamental human rights at work in international trade

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					Fundamental human ri ghts at work in
               international trade

               Operational routes

 The role that can be played by the

     With the financial support of the European Commission, DG Employment, Social Affairs and Equal Opportunities

Steering committee: J. Decaillon, CES

Syndex: O. Chabrol, E.Da Silva, A. Mestre, Ph. Morvannou
Coordination: Ph. Morvannou
Budgetary coordination: N. Fauvarque
Documentation: A. Boïco
Correction: A. Boussicaut, J. de Loizellerie
Lay-out: A. Boussicaut
Dear Readers,

We are delighted to present you with this study into operational methods of ensuring
compliance with labour rights in the framework of the WTO.
The study has been conducted over the first nine months of 2008, by a team of four
experts from Syndex: Olivier Chabrol, Élodie Da Silva, Alain Mestre and Philippe
Their combined multidisciplinary competences have structured a collective reflection,
underpinning a plan which envisages the theme of the study from three complementary
angles: the legal, economic and politico-institutional approaches.
The advantage of such a process lies in the coherence of each approach. The point is that
this coherence allows the team to highlight the operationality, something that everyone will
appreciate, given that this was the prime objective assigned by the European Trade Union
The method implemented for the drafting of this study was structured into three stages:
      status of knowledge on the subject via in-depth bibliographical work;
      interviews with institutional players, trade unionists, NGOs and researchers;
      comparisons of the conclusions and recommendations with certain trade union
We are therefore indebted to all those people who have given us their time and enriched
our ideas in the course of interviews which have always been interesting, or even exciting,
for the team members conducting them.
This has particularly been the case for the members of the steering committee chaired by
Joël Decaillon, ETUC confederal secretary.
Finally, through the work invested in it, and the conclusions we have reached, we hope to
have made the most operational contribution possible towards improving labour rights
around the world.
                                                                       Philippe Morvannou,
                                                                                Team leader

Summar y

List of abbreviations ...........................................................................................................................................................8
Introduction - Labour rights as an instrument in the regulation of globalization ........................................... 10
PART I - Legal routes for getting core labour rights taken into account at the WTO .................................. 11
1. The hierarchy of standards under international law: where do core labour rights fit in? ......................... 13
        1.1. The hierarchy of standards and the declaration by the World Trade Organization (WTO) in
             1998 .................................................................................................................................................................. 13
         The concept of jus cogens and the principle of the hierarchy of standards in international law ......13
         The universality of the principles in the ILO’s 1998 declaration...............................................................14
        1.2. The interpretive procedure of the WTO judge..................................................................................... 17
         The main rules of interpretation.........................................................................................................................17
         The methodology used by the Appellate Body ..............................................................................................18
        1.3. The deciding advice mechanism ............................................................................................................... 19
2. Core labour rights as a legitimate derogation from the multilateral norm.................................................... 19
        2.1. The right to invoke the exceptions designed to protect interests other than commercial
             interests (Article XX of the GATT .......................................................................................................... 20
         Article XX, an affirmative defence ....................................................................................................................20
         Interpretation plan for Article XX of the GATT ..........................................................................................20
        2.2. Review of the paragraphs in Article XX of the GATT ‘in the light’ of core labour rights ....... 21
         Protection of human health, an uncertain route ............................................................................................22
         Products of prison labour, a restrictive route .................................................................................................23
         Protection of public morals, a more likely route............................................................................................25
         The test in the introductory heading .................................................................................................................26
3. Legal avenues for getting trade unions taken into account by the WTO...................................................... 27
        3.1. The route of the treaty and the mechanisms available ........................................................................ 27
         The waiver mechanism (Art. IX-3 of the Marrakech agreement)..............................................................27
         Article V-2 and the WTO’s minimalism...........................................................................................................29
         Review of trade policies (Annexes 3 to the Marrakech agreement) ..........................................................30


         Opening of hearings to civil society ..................................................................................................................31
         3.2. The procedural route: amicus curiae........................................................................................................ 32
         Formation of practice............................................................................................................................................32
         A contested practice...............................................................................................................................................32
         A reserved practice.................................................................................................................................................33
         An issue for trade unionists .................................................................................................................................33
PART II - The economic routes...................................................................................................................................... 33
1. Labour rights, an economic perspective on the ILO conventions: social dumping as a vector for
globalization? ..................................................................................................................................................................... 35
2. Economic interpretations of the eight fundamental ILO conventions ......................................................... 37
         2.1. Ratifications: development index, or State posture? ............................................................................ 37
3. Labour rights and international trade ..................................................................................................................... 38
         3.1. The question of the comparative advantage linked to the violation of labour rights ................. 38
         3.2. Is the development of international trade favourable to better respect for labour rights?........ 39
4. Of trade and development: the evolution of economic prospects ................................................................. 40
         4.1. From international trade as an enemy of development … ................................................................ 40
         4.2. … to international trade as a tool for economic take-off................................................................... 40
         4.3. The complementarity between international trade and direct foreign investment as a
              development route........................................................................................................................................ 41
         4.4. The emergence of China into international trade: towards a new global economic order ........ 42
5. The current phase: the need for refocusing on the internal markets ............................................................. 45
         5.1. The WTO, guaranteeing the opening up of the markets in the developed countries................. 45
         5.2. Free trade and multilateralism.................................................................................................................... 46
         5.3. The WTO: from liberalization to the issuing of standards ................................................................ 47
6. The international framework agreements .............................................................................................................. 48
         6.1. A company tool to assert rights in ‘non-right’ areas ............................................................................ 49
         6.2. A tool for the appropriation of labour rights by the players in civil society ................................. 49
         6.3. The limits of the IFA as a social regulation system ............................................................................. 50

                             LAB OUR RIGHTS            ,   AN INSTRU MENT FOR T HE REGULATION OF GLOBALIZATION

7. Social labels and standards........................................................................................................................................ 50
         7.1. Market tools serving improved respect for core labour rights......................................................... 50
         7.2. Social labels, the legal route........................................................................................................................ 51
         7.3. The promotion of standards and labels in the WTO negotiations .................................................. 51
         The draft standard ISO 26000 ............................................................................................................................52
         7.4. The credibility of the use of these tools on a large scale .................................................................... 53
         Tracking and monitoring the trends in the commercial sectors ...............................................................54
         Resources for social monitoring .........................................................................................................................54
         Resources for verification or certification........................................................................................................55
         The role of the trade union players in the monitoring and verification mechanisms ..........................55
         How to accompany the poor and emerging countries in setting up such mechanisms.......................55
         7.5. The effectiveness of these tools will in any case remain partial........................................................ 56
PART III - The political and institutional routes..................................................................................................... 57
1. The protection of core labour rights....................................................................................................................... 58
2. Regional and bilateral commercial agreements: how they fit into international trade ............................... 60
         2.1. Compatibility between the social provisions in the regional or bilateral agreements and the
              WTO rules ...................................................................................................................................................... 60
         2.2. The issues in the Cotonou agreement in terms of governance and the recognition of the three
              pillars of sustainable development............................................................................................................ 61
         Why Cotonou? ........................................................................................................................................................61
         The logic underpinning the Cotonou agreement ...........................................................................................62
         Methodology of the agreement from the point of view of labour standards: the ‘essential element’
         A participative approach.......................................................................................................................................63
         The limits ..................................................................................................................................................................63
         2.3. Do the GSP ‘plus’ agreements currently being promoted by the European Union herald a
              future of multilateralisation?....................................................................................................................... 64
         2.4. GSP + or ‘reinforced’ GSP ........................................................................................................................ 65
3. Integrated and more flexible approach taking account of core labour rights via the concept of
decent work ........................................................................................................................................................................ 66


4. The UN’s sustainable development approach as a political and institutional path for the
recognition of labour rights by the WTO .................................................................................................................. 67
         4.1. The major stages in the development of the SIAs ............................................................................... 68
         4.2. Objectives of the SIAs on the European Union’s external trade..................................................... 69
         4.3. Future challenges from the SIAs and the negotiations, and implementation of the EU’s
              commercial agreements to take better account of the social pillar in sustainability .................... 70
         Getting the results of an SIA better integrated into the negotiations and the commercial
         Improving the quality of the external trade SIAs...........................................................................................70
         Improving the process for the consultation of the trade unions as civil society actors concerning
         these SIAs .................................................................................................................................................................71
         Improving the political and institutional dialogue concerning these SIAs ..............................................71
General conclusion........................................................................................................................................................... 73
Bibliography ....................................................................................................................................................................... 77



List of abbreviations

AB: Appellate Body (WTO)
ACP: Africa, Caribbean, Pacific
CSD: Commission on Sustainable Development (UN)
DCs: Developing Countries
DG: Directorate General (European Commission)
DSB: Dispute Settlement Body (WTO)
ECOSOC: Economic and Social Council (UN)
EPA: Economic Partnership Agreement
EU: European Union
GATT: General Agreement on Tariffs and Trade
GSP: Generalized System of Preferences
ICFTU: International Confederation of Free Trade Unions
ICJ: International Court of Justice
IFA: International Framework Agreement
ILO: International Labour Organization
IMF: International Monetary Fund
ITO: International Trade Organization
LDCs: Least Developed Countries
MFNC: Most favoured nation clause
NGO: Non-governmental organization
NTC: National treatment clause
OECD: Organisation for Economic Co-operation and Development
PPM: Processes and Production Methods
SIA: Sustainability Impact Assessment
SPM: Agreement on Sanitary and Phytosanitary Measures
TBT: Agreement on Technical Barriers to Trade
TPRB: Trade Policy Review Body


UN: United Nations
UNCTAD: United Nations Conference on Trade and Development
WIPO: World Intellectual Property Organization
WTO: World Trade Organization


I ntroduction
Labour rights as an instrument in t he regulation
of globalization

For many years, the growth in the global trade in               witnessing since 2002, or even suffering as a
goods and services has been outstripping the                    result of it. Those countries which do not export
growth in production. The creation of the                       oil or raw materials are an example of this, as are
World Trade Organization (WTO) has to do                        the 50 least developed countries (LDCs), the
with this trend which is exacerbating the                       majority of them being in sub-Saharan Africa,
international division of labour among                          whose share in global exports fell from 2.5% to
countries.                                                      less than 1% between 1960 and the 1990s.
Rapid liberalization and increasing exposure to                 While global economic, social and financial
global market forces and international                          integration has reached an unprecedented level,
competition are supposed to favour the                          affecting a growing number of countries, goods
competitiveness of each country, speeding up                    and services, a country’s economic and social
economic growth and closing the income gap                      performance depends first and foremost on the
between the developed countries and the                         pace of its productivity gains. Yet whether it be
developing countries. In fact there are few                     the economy of a country or of a sector, or
among the less developed countries which have                   indeed a company, productivity gains stem from
achieved any significant reduction in poverty.                  two major sources: the intensity and the
This is one of the observations driving the                     intelligence applied jointly to the individual and
increasing perception of globalization as forging               collective tasks. In fact it is through this route of
ahead at the expense of the poor, the                           productivity, progress and development that
environment and workers’ rights, and the                        economic and social advances are achieved, the
Millennium Summit in 2000, despite its                          most recent successful examples being certain
ambitious objectives, did not change anything                   countries in Asia, such as South Korea.
                                                                How can valid results be achieved in this area
This was the background against which the                       without an underpinning of fundamental rights
WTO launched a fresh round of commercial                        allowing men and women to develop their
negotiations, with a programme allegedly geared                 potential in a framework which guarantees their
towards development, and – it is important to                   rights at work?
stress – this in spite of the fact that economic
growth has not let up over recent years.                        How can individual and collective involvement
                                                                be achieved without such an underpinning?
The point is that the world was beginning to
notice that growth is not to everyone’s benefit.                We have to recognise that in parallel with this
Some populations are excluded from the                          growing integration of the world’s economies,
extraordinary growth that we have been                          the content in terms of labour rights is being
                                                                eroded in world trade, because of the growing


participation in trade of countries where                               impossible for account to be taken of this
violations of labour rights are at their most                           dimension. The main thrust of this study is to
acute. By core labour rights, we mean the eight                         seek out ways of getting the WTO to take
conventions dubbed fundamental by the ILO                               account of labour rights.
(see box below). The World Trade Organization
has set itself rules which apparently make it

                                        Fundamental ILO conventions ratified
                                        (in millions of inhabitants concerned)
                                                            abolition of
                     free trade    collective     forced
                                                              forced       equal pay   discrimin°   min. age   child labour
                       unions     bargaining      labour
ILO Convention n°       87            98           29           105           100         111         138          182
European Union         490,1         490,1        490,1        490,1         490,1       490,1       490,1        490,1
United States                                                  300,0                                              300,0
Japan                  127,9         127,9        127,9                      127,9                   127,9        127,9
China                                                                       1 313,0     1 313,0     1 313,0      1 313,0
India                                             1 134,4     1 134,4       1 134,4     1 134,4
Total                 618,0         618,0         1 752,4     1 924,5       3 065,4     2 937,5     1 931,0      2 231,0
Share in the total    18,4%         18,4%          52,1%       57,2%         91,1%       87,3%       57,4%       66,3%


      Core labour rights: status of ratifications by the major economic powers

The concept of core human rights rests on eight conventions which the Governing Body
of the International Labour Organization (ILO) described as ‘fundamental’ in 1998 and
which refer to:
      The effective recognition of free trade unions and the right to collective bargaining
      (conventions 87 and 98);
      The elimination of any form of forced or obligatory labour (conventions 29 and
      The effective abolition of child labour (conventions 138 and 182);
      The elimination of discrimination in respect of employment and occupation
      (conventions 100 and 111).
The ILO supplements these by what it refers to as four ‘priority’ conventions, which are
indispensable to the smooth operation of the system of international labour standards:
      on labour inspections (conventions 81 and 129);
      on tripartite consultations with regard to international labour standards (convention
       on employment policy (convention 122).
In fact, these priority conventions relate to the resources actually implemented to ensure
compliance with the fundamental standards.
Without addressing the question of the resources, and focusing just on the ratification of
the eight fundamental standards, in the case of the world’s major economic powers, which
accounted for 52% of the world’s population in 2005:
      the conventions against types of discrimination have been ratified by the countries
      representing almost 90% of the populations in the sample;
      conversely, the conventions on free trade unions and the right to collective
      bargaining are the ones least ratified by the world’s major economic powers, since
      they cover under 20% of the populations in the sample;
      the other conventions, which deal with child labour, concern approximately 50% of
      the world’s population.


P art I
Legal routes for getting core labour rights
taken into account at the WTO

1. T h e h i e r a r c h y o f                               1.1. The hierarchy of standards and
standards under                                              the declaration by the World Trade
i n t e r n a t i o n a l l a w : where                      Organization (WTO) in 1998

do core labour rights fit in?                                ‘International society is striving to build itself a global law’1
                                                             and the universal political community is in its
                                                             absolute infancy. The global system remains very
                                                             heterogeneous, and sometimes indeed inconsistent.
Globalization has meant that States have become
                                                             The same States are undertaking to respect human
interdependent. Trade dealings have proliferated
                                                             rights while refusing to integrate such rights into
and information is being spread more rapidly. This
                                                             world trade, as if there were no connection between
means we are seeing a global clash of values.
                                                             the two arenas.
However, among these values there are some which
are common across all mankind, which enable us to            The concept of general peremptory law might help
live together, such as the core rights. Trade cannot         to plug these gaps.
develop without taking these values into account.
                                                             The concept of jus cogens and the principle
                                                             of the hierarchy of standards in international
                                                             Treaty law is a form of contractual law and a simple
                                                             transposition of the balances of forces between
                                                             States. As such it requires rules which lie at a higher
                                                             echelon in the hierarchy, so as to manage the right
                                                             of the States to negotiate.

                                                             1 Monique Chemillier Gendreau, ‘Pour une éthique de

                                                             l’économie: le droit, un élément de frein ou de progrès?’,
                                                             Economie éthique, n° 1, SHS-2003/WS/21, 2003, Unesco
                                                             publication,     available   on     the    Internet    at:


A report by the United Nations on the problems                                      accepted by the international community as a
associated with the fragmentation of international                                  whole.
law imposes the following rule: ‘When seeking to
determine the relationship of two or more norms to each other,                      All the norms of jus cogens have the character of an
the norms should be interpreted in accordance with or                               obligation erga omnes, meaning that they are
analogously to the VCLT and especially the provisions in its                        obligations upon a State vis-à-vis all the States, so
articles 31-33 having to do with the interpretation of                              they concern the international community as a
treaties’2.                                                                         whole and all States are considered as having the
                                                                                    right to protect them.
In that same report, a crucial principle for the                                    The universality of the principles in the ILO’s
interpretation of international law is established: the
                                                                                    1998 declaration
hierarchy of international law. Obviously we must
not compare internal and international law in this                                  The concept of core workers’ rights was enshrined
area, and international law does not have a clearly                                 in 1995 by the global Social Development Summit
defined hierarchy of values. However, certain rules                                 in Copenhagen. It includes the four principles set
are more important than others. Certain indices in                                  out in the ILO’s 1998 declaration. In 1996, at the
fact can tell us whether or not a particular rule is                                5th Ministerial Conference of the WTO in
more important than the others: this is the case                                    Singapore, the Member States announced in § 4 of
where a norm is rated as ‘fundamental’ or a                                         the Singapore ministerial declaration: 'We renew our
violation of a norm is described as ‘serious’.                                      commitment to the observance of internationally recognized
                                                                                    core labour standards. The International Labour
Article 53 of the Vienna Convention applies the                                     Organization (ILO) is the competent body to set and deal
principle of the superiority of a norm of jus cogens 3.                             with these standards, and we affirm our support for its work
The direct consequence of this predominant                                          in promoting them’. The fundamental character of
place in the hierarchy of norms is that ‘A rule                                     these core labour rights has never been questioned,
conflicting with a norm of jus co gen s becomes                                     because it is the very object of these rights that
thereby ipso fa cto void 4’.                                                        gives them this character. So we can echo Michel
                                                                                    Hansenne and say that ‘Core labour rights are not
Yet the content of this concept is vague and ill-                                   fundamental because the declaration says so, but the
defined. For example, § 35 of the United Nations                                    declaration says so because they are’. Such a simple a priori
report explains what may be a peremptory rule of                                    observation is actually a key factor, for it
general international law: the rules prohibiting                                    demonstrates how these principles are enough in
genocide and torture, the rules protecting                                          themselves. They exist in a fundamental way,
fundamental human rights, the right to self-                                        regardless of the medium in which they are
determination and the prohibition of recourse to                                    couched, they are principles which determine the
force, together with the rules recognised and                                       exercise of other rights.
                                                                                    The ILO declaration was adopted in June 1998 by
                                                                                    the International Labour Conference, after 18
2 UN General Assembly, Report of the International Law                              months of discussions and groundwork. The
Commission, Study Group on Fragmentation of international law:                      adoption of the declaration represents the pledge
Difficulties arising from the diversification and expansion of international        made by all the Member States of the ILO
law, 58th session, 2006.                                                            (irrespective of their level of economic
3 jus cogens is defined in Article 53 of the 1969 Vienna
                                                                                    development, their cultural values, their history or
Convention on the Law of Treaties as being ‘a peremptory norm of
general international law … a norm accepted and recognized by the                   the number of ILO conventions that they have
international community of States as a whole as a norm from which no                ratified) to respect, promote and realize the core
derogation is permitted and which can be modified only by a subsequent              labour rights and principles. A number of indicators
norm of general international law having the same character’.                       allow us to believe in the universality of these
4 UN General Assembly, Report of the International Law
Commission, Study Group on Fragmentation of international law:
Difficulties arising from the diversification and expansion of international
law, 58th session, 2006, p. 15.


Firstly, the declaration recalls in § 1 that the 174                    (independent of the control procedures established
Member States5 have accepted the principles and                         by the ILO constitution) proper to the principles
rights listed in the ILO constitution and the                           enshrined in the ILO constitution by the
Philadelphia declaration and pledged to work on the                     Philadelphia declaration and reiterated in the 1998
realization of the objectives of the whole                              declaration. To implement this monitoring, the
Organization. The declaration likewise reminds the                      International Labour Office no longer needs the
Member States in § 2 that all Members ‘e ve n if they                   prior agreement of the members in order to
ha ve n ot ra tified the Co nven tions in question, have                promote them systematically.
an obligation arising f ro m the very f ac t of
                                                                        The solemnity of the text of the declaration, the
me mbers hip in the Organ iza tion, to respect, to
                                                                        universality of the principles and the rights that
promote and to realize, in good faith and in accordance with            the declaration ‘r ecalls’, plus the more than
the Constitution, the principles concerning the fundamental             significant number of ILO members (173 of the
rights which are the subject of those Conventions6’.                    194 States in the world are members of the ILO)
This means that even where the States have not                          are all evidence that core labour rights have
ratified the conventions relating to these rights, they                 achieved the status of universal rights.
have a duty to respect their principles, which are ‘the                 International labour law has advanced a long way in
expression of the values of social justice which they freely            recent decades, having been consolidated and
accepted when signing up to the constitution of the ILO7’.              rendered universal. The fundamental rights and
These rights are universal and apply to all peoples                     principles of the 1998 declaration have given rise to
and all States, regardless of their level of economic                   a strong movement towards the ratification of the
development. They form a base level below which                         conventions referred to therein. This declaration
human dignity is not respected.                                         and the principles and rights that it enshrines have
                                                                        increased in importance and are being adopted by a
Moreover, the preamble to the ILO constitution                          large number of organizations (the Organisation for
recalls the interdependence between the various                         Economic Co-operation and Development
States, notably the interdependence in their                            (OECD) and its code of conduct intended for
economies and their labour markets, and stipulates                      multinationals, the United Nations (UN) and its
in its 3rd recital that ‘the failure of any nation to adopt             Global Compact, etc) and bilateral and regional
humane conditions of labour is an obstacle in the way of other          treaties, and unilateral systems of preferences, as
nations which desire to improve the conditions in their own             well as by a large number of transnational
countries’. It is thus in the interests of the                          businesses in their ethical charters which recognise
international community as a whole for these                            that these fundamental rights constitute a basis for
standards to be respected.                                              responsible commercial conduct. There is thus a
                                                                        consensus on the values relating to social questions
Finally, to make the declaration effective, the latter
                                                                        set out in the declaration.
sets in place a promotional monitoring mechanism8
                                                                        But what about the UN’s International Covenant
                                                                        on Civil and Political Rights and International
5 As at 17 March 2005, figures obtained on the ILO Internet             Covenant on Economic, Social and Cultural
site.                                                                   Rights?
6 Conventions n° 87 and 98 (Freedom of association

and collective bargaining ), n° 138 and 182 (Effective abolition
of child labour), n° 29 and 105 (Abolition of forced labour),           information provided by the trade unions and employers’
n° 110 and 111 (Elimination of discrimination in respect of             organizations and an introduction drafted by a group of seven
employment and occupation).                                             eminent experts. The second instrument is the global report,
7    Michel Hansenne, ‘Normes sociales et commerce                      submitted every year by the Director General of the
international’, CJCFE/CFCE, n° 2, 2000, p. 277.                         International Labour Office to the International Labour
8 The promotional monitoring mechanism includes two                     Conference for examination. This report is drafted on the basis
promotional instruments. The first instrument is the annual             of the results of the annual examination and other official
report, which is studied by the Governing Body in March each            sources of information. Once the global report has been
year and which contains the annual reports prepared by the              examined by the International Labour Conference, the results
Member States which have not ratified one or more of the                are presented to the Governing Body, which draws up an action
fundamental ILO conventions relating to the declaration, the            plan for the ILO’s technical co-operation activities.


These covenants, and human rights in general, are
universal rights. The general consensus in doctrine
is that they are part of general peremptory law and
thus have a value erga omnes. In its advisory opinion
on the legal consequences of the construction of a
wall in the occupied Palestinian territory on 9 July
2004, the International Court of Justice (ICJ)
recalled that it had indicated in the Barcelona Traction
case that obligations erga omnes are by their very
nature ‘the concern of all States’ and ‘in view of the
importance of the rights involved, all States can be held to
have a legal interest in their protection9’.
Human rights like core labour rights have thus
acquired a fundamental place in the hierarchy of
international standards and might therefore be
described as jus cogens. However, this idea remains
somewhat theoretical and its content is rather
vague. The question should thus be referred to the
national and international jurisdictions so as to
provide a more practical meaning for the idea.
Global governance of labour is indispensable, and
respect for the 1998 declaration and the United
Nations covenants by all international organizations
is a way of achieving this. However, the Dispute
Settlement Body (DSB) is competent only in terms
of attribution, and can neither revise the texts of the
agreements nor modify the commitments entered
into by the Member States, but it has to respond
when it is solicited. Recent developments in
international labour law demonstrate that there is a
broad consensus today around the core labour
rights contained in the 1998 ILO declaration. So the
WTO cannot remain on the sidelines, especially
given that the interpretive procedure of the judging
bodies makes it possible to place global trade law
within a wider setting than the international legal

9  Barcelona Traction, Light and Power Company Limited, ICJ
judgement, 1970, p. 32, § 33.


                                                                               declaration is not covered by general peremptory
1.2. The interpretive procedure of                                             law, it has to be acknowledged that all the States
                                                                               parties to the WTO are also members of the ILO:
the WTO judge                                                                  and so the principles contained in the 1998
                                                                               declaration should be applicable to the Member
The interpretative procedure of the WTO judge is                               States of the WTO.
well established and is a guarantee of legal security;
this makes it to some extent predictable. The main                             Moreover, Article 31-3-c of the Vienna Convention
rules of interpretation used by the Appellate Body                             makes international law an integrated legal system.
(AB) have allowed the judge to take the rest of                                The Vienna Convention thus establishes a
international law into account, notably the objective                          significant relationship between the norms
of sustainable development.                                                    making up the legal system that is international law.
                                                                               This posit was accepted by the UN General
The main rules of interpretation                                               Assembly in the report entitled Fragmentation of
Article 3-2 of the Understanding on Rules and                                  international law: Difficulties arising from the diversification
Procedures governing the Settlement of Disputes                                and expansion of international law11. Accordingly, to
states that ‘The Members recognize that it (the DSB)                           quote the said report, there exists at international
serves to preserve the rights and obligations of Members under                 level an ‘objective of ‘systemic integration’, according to
the covered agreements, and to clarify the existing provisions                 which, whatever their subject matter, treaties are a creation of
of those agreements in accordance with customary rules of                      the international legal system and their operation is
interpretation of public international law. Recommendations                    predicated upon that fact’ .
and rulings of the DSB cannot add to or diminish the rights                    Application of this principle brings three
and obligations provided in the covered agreements’.                           consequences: the parties are deemed to refer to
                                                                               customary international law and the general
Yet the rules of interpretation of international                               principles of law for all questions that the treaty
public law are listed in the Vienna Convention on                              does not resolves itself, and where the parties sign a
the Law of Treaties dating from 1969, in Articles 31                           treaty, they do not have the intention of acting in a
to 34. The Understanding thus implicitly refers to                             way that is contrary to the generally recognised
that convention.                                                               principles of international law.
Article 31 § 3-c of the Vienna Convention on the                               Then, still according to the same report, the
Law of Treaties provides that for the purposes of                              interpreter of a treaty must examine other rules
interpreting a treaty, ‘there shall be taken into account,                     based upon treaties to establish a coherent meaning,
together with the context, any relevant rules of international                 and given that international law is a dynamic legal
law applicable in the relations between the parties’. The AB                   system, the interpreter may likewise refer to the
has interpreted this article as covering both the rules                        evolutions in international law, and the meaning of
and the principles, since in the Shrimp case, it cited                         a particular provision may be modified by
Article 31-3-c to construe Article XX of the GATT                              subsequent evolutions, regardless of the original
(General Agreement on Tariffs and Trade) in the light of                       wishes of the parties.
the principle of good faith. Finally, the term ‘parties’
                                                                               Finally, the interpreter of a treaty may take into
extends to all the parties to the treaty to be
                                                                               account, according to Article 31 § 3-c, the rules of
interpreted, not just the parties to the dispute.
                                                                               international law subsequent to the treaty forming
Accordingly, the WTO judge is required to take
                                                                               the subject of the interpretation, especially where
account of a principle ‘only if that principle appears in a
                                                                               the ideas used in the treaty are open or evolving.
multilateral treaty binding at least some of the members of the
organization, or if it belongs to the sphere of international
general law’10. Yet if the view is taken that the 1998

                                                                               11 UN General Assembly, Report of the International Law

10Lorenzo Gradoni et Hélène Ruiz-Fabri, ‘L’affaire des OGM                     Commission, Study Group on Fragmentation of international law:
devant le juge de l’OMC: science et précaution sans principes’,                Difficulties arising from the diversification and expansion of
Diritto del commercio internazionale, 2007, vol. 21, n° 3, pp. 641-664.        international law, 58th session, 2006.


The methodology used by the Appellate                                               ‘ecological imperialism’ feared by the developing
Body                                                                                countries.

The AB takes into account the whole of general                                      In addition, the ‘effectiveness method’ enabled the
international law, and has decided, from its first                                  AB to justify an evolving interpretation of the
report 12, not to clinically isolate WTO law from the                               WTO agreements. The principle laid down in this
rest of international law. According to Pascal Lamy,                                case law is that a legal instrument must be
‘this mea nt that the WTO is no more tha n one                                      interpreted within the legal system in force at the
ele me nt in a more glob al s ys te m whic h incl ud es                             time of the interpretation16. Accordingly, the AB
several se ts of rights and obl iga tio ns. No pr iority                            judge adapted the idea of exhaustible natural
is give n to the nor ms of the WT O co mp are d to                                  resources to the evolutions in environmental law.
other nor ms. H en ce the n ece ss ity to en sure glob al                           The direct consequence was to extend this category
co here nce in the in ter pre ta tio n an d a ppl ica tio n of                      to sea turtles, which, although a renewable natural
all the valu es, a ll the rights an d all the                                       biological resource, might be threatened with
obligation s’ 13. Thus, not only has the AB framed a                                extinction and thus fall under the heading of
method of interpretation of WTO law based on the                                    exhaustible natural resources. The AB thus served
methods and principles codified in the Vienna                                       clear notice of its intention to interpret WTO law
Convention, but ‘it has, in that context, referred to                               dynamically and on an evolving basis: ‘the expression
substantial rules under international law in the light of which                     ‘exhaustible natural resources appearing in Article XX-g
it has determined the meaning to be placed on provisions or                         was actually coined over 50 years ago. It needs to be analysed
parts of provisions in WTO law’14.                                                  by a treaty interpreter in the light of the current concerns of
                                                                                    the community of nations in terms of the protection and
The Shrimp report furnishes a good example in this                                  conservation of the environment 17’.
connection. The AB, thanks to the Vienna
Convention interpretation rules, has updated Article                                Some general-interest criteria have appeared in
XX-g15. The United States had adopted a measure                                     international trade, and the DSB has recognised in
designed to protect threatened sea turtles from                                     certain cases that there were higher interests to be
shrimp fishing nets. The problem arose with the                                     protected. Sustainable development is one of them.
measures relating to the application of this measure.                               In the preamble to the WTO charter, more
They were setting in place a certification procedure                                specifically in § 118, the objective of the organization
imposing conditions upon the entry of the shrimp                                    is both economic (increasing production and trade
into the territory of the United States. For the                                    in goods and services) and social (raising standards
shrimp to be certified, they had to have been caught                                of living and ensuring full employment), and these
using a particular type of net. This was what the AB                                two objectives are to be achieved ‘while respecting the
disallowed, calling on the United States to consult                                 objective of sustainable development’ 19.
with the exporting countries concerned by the
measure. It thus rejected the unilateralism and
                                                                                    16 Hélène Ruiz-Fabri, ‘Chronique de la jurisprudence du système

                                                                                    de règlement des différends’, Journal du droit international, 2002,
                                                                                    vol. 129, n° 3, pp. 869-871.
12  AB report, WT/DS2/AB/R, United States – Standards for                           17 Pierre Monnier, ‘L'environnement dans la jurisprudence de

reformulated and conventional gasoline, adopted by the DSB on 20                    l'OMC’, Les Notes bleues de Bercy, n° 186, July 2000.
May 1996, p.18.                                                                     18 § 1 of the preamble to the Marrakech agreement states:
13 Pascal Lamy, ‘Vers une gouvernance mondiale?’, speech at the                     ‘Recognizing that their relations in the field of trade and economic endeavour
inauguration of a master at the Institut d’études politiques de                     should be conducted with a view to raising standards of living, ensuring full
Paris, 21 October 2005.                                                             employment and a large and steadily growing volume of real income and
14 Hélène Ruiz Fabri, ‘Concurrence ou complémentarité entre                         effective demand, and expanding the production of and trade in goods and
les mécanismes de règlement des différends du Protocole de                          services, while allowing for the optimal use of the world's resources in
Carthagène et ceux de l’OMC?’ in J. Bourrinet, S. Maljean-                          accordance with the objective of sustainable development, seeking both to
Dubois, Le commerce international des OGM: quelle articulation entre le             protect and preserve the environment and to enhance the means for doing so
Protocole de Carthagène sur la biodiversité et le droit de l’OMC?, Paris, la        in a manner consistent with their respective needs and concerns at different
Documentation française, 2002, pp. 149-176.                                         levels of economic development’
15 General exemption to WTO rules designed to protect                               19 Marie-Pierre Lanfranchi, ‘Les droits sociaux fondamentaux

exhaustible natural resources.                                                      dans le droit applicable au commerce international’, in Chérot


Another example of the ‘permeability of WTO                                           1.3. The                      deciding                    advice
law’20 lies in the dispute European Communities –
Conditions for granting of tariff preferences to developing                           mechanism
countries21. In the event, the European Communities’
generalized system of preferences (see infra) was at                                  Coherence is a recurrent theme in WTO law. The
issue. India, not a beneficiary of the special regime                                 States have a duty to be coherent in their
on drugs, filed a complaint before the DSB to have                                    commercial policies: in fact this is a measure of
it recognised that the conditions for the award of                                    their good faith. However, it seems that in the field
this scheme were discriminatory. The AB accepted                                      of core labour rights, this coherence is lacking. This
the possibility of granting tariff preferences to the                                 means that the deciding advice mechanism would
developing countries and the possibility of                                           make it possible to improve global governance.
differentiating the preferences where the beneficiary                                 So the idea is to set in place a procedure that would
countries are in different situations. So the special                                 enable the panels and the AB – where the latter are
scheme on drugs was declared to be discriminatory                                     faced with a question outside its field of
for the lack of objectivity in its criteria, but not for                              competence – to call upon the competent
the conditionality attaching to the additional                                        international organization. If the AB or the panels
preferences, So we can affirm, along with Mme                                         then decide not to follow the advice issued by the
Lanfranchi, that ‘the Appellate Body seems to us to be                                said organization, they must give reasons for their
taking a position, albeit implicitly, in the debate on the social                     decision.
conditionality of commercial relations’22. This reading of
the enabling clause allows account to be taken of                                     The WTO texts allow for the setting in place of
human rights in the commercial relations between                                      such a consultation procedure, firstly because the
Member States.                                                                        decisions and declarations in the Uruguay Round
                                                                                      include the Declaration on the contribution by the WTO
Accordingly, some general-interest criteria have                                      to greater coherence in the framing of economic policies, in
appeared in international trade and the DSB has                                       which the WTO recognises the importance of
recognised in certain cases that there were higher                                    coherence at national and international level. Yet to
interests to be protected. Sustainable development                                    allow the DSB to take into consideration the point
is one of them. This is particularly true because the                                 of view of other international organizations in the
preamble to the WTO Charter sets out the                                              areas for which they are competent would
organization’s objective in § 1. This is both                                         contribute towards improving international
economic (increasing production and trade in goods                                    coherence. Then the deciding advice mechanisms,
and services) and social (raising standards of living                                 which are already familiar under internal law, would
and ensuring full employment), and these two                                          enable the judges or arbitrators to hand down
objectives are to be achieved ‘while respecting the                                   clearer and better decisions, as required by Article
objective of sustainable development’.                                                12-2 of the Understanding on Rules and Procedures
                                                                                      governing the Settlement of Disputes23. Finally,
                                                                                      Article 13-2 of the same Understanding allows the
                                                                                      panels to call upon experts to obtain advice on the
                                                                                      questions they are called upon to examine. The ILO
Jean-Yves, Les droits sociaux à l’âge de la mondialisation, Aix-en-                   might serve as a tool for objectivity in the WTO
Provence, Presses universitaires d’Aix-Marseille, 2005, pp. 59-73                     framework.
20 Expression heard in the conversation with Mme Lanfranchi.                          In order not to reduce the role of the ILO simply to
21 AB report, WT/DS246/AB/R, European Communities –                                   that of an expert, as the term is currently construed
Conditions for granting of tariff preferences to developing countries, 7 April
2004, p. 73.
22 Marie-Pierre Lanfranchi et Nathalie Thomé, ‘La gouvernance

du commerce international : la question des interactions
commerce / normes sociales’, in Laurence Boisson de
Chazournes et Mehdi Rostane, Une société internationale en                            23 This article states: ‘Panel procedures should provide sufficient

mutation : quels acteurs pour une nouvelle gouvernance?, Brussels,                    flexibility so as to ensure high-quality panel reports, while not unduly
Bruylant, 2005, pp.185-208.                                                           delaying the panel process’


at the WTO, Mme Frison-Roche24 proposes a                                   protect public health, the environment or public
solution whereby when a dispute calls into question                         morals. What about international labour law? Could
a labour standard, the case could be compulsorily                           Article XX make it possible to legitimise a measure
referred to the ILO for advice. The advice would                            restricting trade but established for the sake of
then be addressed to the WTO (which might debate                            protecting core labour rights? The Vienna
this advice before the DSB). The panel would then                           Convention on the Law of Treaties sets out the
have to comply with the advice, unless it                                   method for the interpretation of treaties (see supra).
demonstrated that certain points were inaccurate de                         We shall explore the method adopted by the AB to
facto or de jure or that it could not be preferred over                     interpret the exceptions in Article XX, and then we
the WTO rules, in light of the balance to be struck                         shall look at the applicability of human rights to the
between the advantages and the drawbacks.                                   exception clauses.

                                                                            Article XX, an affirmative defence
2. Core labour rights
                                                                            The exception mechanism is an ‘autonomous’
as      a     legitimate                                                    mechanism, since it allows members not to comply
derogation from the                                                         with certain obligations without prior authorisation
                                                                            (unilateral use by the members). It is for the
multilateral norm                                                           member who feels it has been injured by the
                                                                            measure thus adopted to start a dispute settlement
                                                                            procedure. The exception scheme will then serve as
                                                                            an affirmative defence for the defendant, in the
A certain measure of flexibility in commercial
                                                                            framework of a burden of refutation. This means
agreements is necessary in order to allow the States
                                                                            that the defendant may, by admitting or failing to
to discharge their obligations in terms of human
                                                                            admit the incompatibility of the measure, prove that
rights, and more specifically in terms of core labour
                                                                            the latter meets the application conditions of Article
rights. However, the WTO texts have failed to
                                                                            XX of the GATT and that it therefore benefits
clarify how the obligations upon the members vis-à-
                                                                            from a right to derogate from its obligations. The
vis the WTO might interact with the members’
                                                                            point is that such exceptions are a genuine right for
obligations vis-à-vis the rest of international law,
                                                                            the members, which is why they need not be
notably international labour law and ILO law.
                                                                            interpreted strictly, since they constitute exceptions
                                                                            to the WTO rules26. This article has a particular
                                                                            structure for which the AB has drawn up a precise
2.1. The right to invoke the                                                interpretation plan.
exceptions designed to protect
                                                                            Interpretation plan for Article XX of the
interests other than commercial                                             GATT
interests (Article XX of the GATT25)
                                                                            Article XX is divided into an introductory heading
Article XX of the GATT allows members to                                    and a list of sub-paragraphs. The introductory
impose restrictions on trade so as to protect their                         chapter translates a general rule of good faith,
interests other than commercial interests. The States                       prohibiting arbitrary or unjustifiable discrimination
have already used the exceptions in Article XX to                           and disguised restrictions on trade. The paragraphs
                                                                            list the non-commercial objectives which the States
                                                                            may legitimately pursue by derogating from the
24 Marie-Anne Frison-Roche, ‘OMC versus OIT’, CJFE/CFCE,
                                                                            GATT rules.
n° 2, 2000, p. 293.
25 Twin article to Article XIV of the GATS. They are thus

justifiable under the same type of reasoning. Accordingly, the
case law of Article XX of the GATT can be extended to Article
XIV of the GATS (AB report, WT/DS285/AB/R, United States
                                                                            26 AB report, WT/DS26, WT/DS28, EC – Measures concerning
– Measures affecting the cross-border supply of gambling and betting
services, 7 April 2005, Antigua and Barbuda vs. US).                        meat and meat products (hormones), 16 January 1998, Canada, US vs.


The article reads as follows: ‘Subject to the requirement
that such measures are not applied in a manner which would             2.2. Review of the paragraphs in
constitute a means of arbitrary or unjustifiable discrimination
between countries where the same conditions prevail, or a              Article XX of the GATT ‘in the light’
disguised restriction on international trade, nothing in this          of core labour rights
Agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures:                      Certain exceptions are not relevant in terms of
a) necessary to protect public morals;                                 human rights. We shall thus concentrate on Article
b) necessary to protect human, animal or plant life or health;         XX-b (protection of human health and life), Article
                               (…)                                     XX-e (products of prison labour) and Article XX-a
e) relating to the products of prison labour;                          (protection of public morals). The examination of
                               (…)                                     the measure may change depending on the
The DSB has specified the conditions under which                       objective pursued, with some exceptions calling for
non-commercial objectives may be pursued. The                          a relationship of necessity between the measure and
Gasoline case27 is the first decision to welcome the                   the objective pursued and others a close
exception. This was the report in which the AB                         connection.
established the method to be followed for the
examining the validity of a measure in light of                        Protection of human health, an uncertain
Article XX of the GATT.                                                route

The panel had decided to start by checking whether                     The expression ‘human health and life’ has an
the measure in question was being applied in a                         ordinary meaning which is very broad and can
discriminatory fashion. As appropriate, it was                         cover a range of economic, social and cultural rights
deemed incompatible with the WTO rules. This                           such as the right to life and health. Protection of
method favoured the objective of liberalization:                       health at work can thus be included in this
everything that was discriminatory was inadmissible.                   expression. In the Asbestos case, the AB declared
An examination of the introductory heading could                       that the States could set the level of protection that
thus never be validated.                                               they deemed appropriate in a given situation.
                                                                       However, Article XX-b demands a relationship of
The method adopted by the AB in this case gives                        necessity between the measure and the objective
more space to exceptions. It drew on the customary                     pursued. Allegations will thus have to be based
rules of general international law to decide that                      upon the existence of a scientific risk in light of all
before looking at discrimination, the panels must                      the scientific evidence available. In the case of core
focus on the letter of the text, otherwise exceptions                  labour rights, it will be necessary to demonstrate by
could never be invoked and this article would be                       surveys that the rate of illness or death is
devoid of content. The AB thus established a                           abnormally high in one of the production branches
reading in two stages. The panels must first examine                   in a State in order to apply restrictive measures on
whether the measure falls within one of the                            the trade in products coming from that State. Then
paragraphs of Article XX. If so, the measure is                        the measures adopted will need to be proportionate
validated on a provisional basis. Then, they must                      to that risk and necessary in order to achieve the
look to see whether the way in which the measure is                    level of protection desired. To put it another way,
applied produces discrimination or a disguised                         there must not exist ‘other measures compatible, or less
restriction on trade.                                                  incompatibles, with the GATT’ (AB report, Asbestos,
                                                                       2001). However, the existence of the risk is difficult
                                                                       to demonstrate and it is not certain that the AB will
                                                                       give the States the competence to legislate with a
                                                                       view to the protection of persons not on their
27  AB report, United States – Standards for reformulated and
conventional gasoline, WT/DS2/AB/R, United States vs.
Venezuela and Brazil, 20 May 1996.


The point is that the principle of non-interference                            that even a territorial measure might have effects on
in the domestic affairs of another State is a                                  third countries because often it is not sufficient
fundamental principle of general international law.                            unto itself. The seeds of doubt are sown, and the
The direct consequence of this principle is that no                            case law on Tuna/dolphins I is shaken. So: what
State can interfere with the exercise of the territorial                       about extraterritorial measures? David Luff says
sovereignty of other States. This means that States                            that there is a legal vacuum on this question.
are entitled to protect only persons and activities
                                                                               But nothing is certain and we cannot guarantee
subject to their own sphere of competences28. And
                                                                               which way the AB would jump if it had to make a
this is particularly true in the case of Processes and
                                                                               ruling. That is why the indent relating to the
Production Methods (PPM).
                                                                               protection of public morals offers the major
There are two sorts of PPM: territorial PPM (which                             advantage of getting round the question of the
seek to protect persons in the territory of the State                          territorial competence of the State enacting such a
enacting the measure) and extra-territorial PPM                                measure.
(which tackle production procedures in force
                                                                               So if indent b is to be invoked, it is preferable for
abroad). The WTO judge has already ruled on these
                                                                               the protected measure to be a non-binding
questions and has left legal uncertainty.
                                                                               standard. Set in place to inform consumers,
The old GATT case law from 1947 in Tuna-Dolphins                               standards – such as labels – do not ban products
I29 provided a subtly shaded response. The first                               from entering the territory of the State enacting the
panel charged with the case rejected the hypothesis                            measure, which is why, given the importance of the
of extraterritorial protection of interests other than                         interests being protected and the flexibility of the
commercial interests (in the event, dolphins), using                           measure, it is possible for the AB to validate it by
Article XX. But the second authorised this type of                             drawing on the Chilled beef report which states that
measure where it is limited to regulating the                                  ‘The more vital or important those common interests or values
behaviour of their nationals or where it is sufficient                         are, the easier it would be to accept as ‘necessary’ a measure
unto itself. From this case law, a prohibition has                             designed as an enforcement instrument’31 In addition,
been deduced against the enactment by States of                                standards are national measures. States are
measures restricting trade based upon PPM.                                     competent to enact them as part of their normative
                                                                               competence. The problem occurs with the
The AB report on Shrimp30 served to add flexibility                            extraterritorial effects of the measure, but standards
to this decision and create uncertainty regarding                              do not exercise any constraint on third States,
extraterritorial measures. According to David Luff,                            which can always redirect their exports if they lose
we can draw two lessons from this case law. Firstly,                           too much of a market share (the only hurdle arises
the AB has extended the States’ territorial                                    if the risk is too great for a State’s balance of trade).
competence to persons, goods and animals liable to
pass through their territory. Next, the measures
based upon the territorial PPM are not
automatically at odds with Article XX of the
GATT. The AB has accepted that a measure based
upon a PPM might be justified by Article XX and

28  David Luff, Le droit de l’OMC, analyse critique, Bruylant,
Brussels, 2004, 1 277 p.
29 Panel, United States – Restriction on imports of tuna (Tuna/dolphins

I), report not adopted, distributed on 3 September 1991. This
was an American measure to ban imports of Mexican tuna
caught with nets which also caught dolphins. This measure had
been ruled inconsistent with Article XI of the GATT, which
prohibits quantitative restrictions, by the two panels charged
with examining the case.                                                       31 AB report, DS/161 and DS/169, Korea – measures affecting
30 AB report, United States – Import prohibition of certain shrimp and         imports of fresh, chilled and frozen beef, 10 January 2001, Australia
shrimp products, WT/DS58/AB/R, 12 October 1998.                                and US vs. Korea


Products of prison labour, a restrictive route                       with a criminal penalty) and de facto prisons (such as,
                                                                     for example, slavery, forced labour by textile
Article XX-e allows the Member States to adopt                       workers on offshore ships, or the imprisonment of
restrictive measures on the import of products of                    women or children in family structures on pain of
prison labour. This indent requires no more than a                   punishment, etc). The idea of imprisonment in
close link between the measure and the objective                     prison work is lacking from the definition of forced
pursued, with the expression ‘relating to’ being                     labour. However, many times, where forced labour
more flexible than the expression ‘necessary to’.                    practices have been unearthed, workers are
However, this article cannot be invoked except in                    imprisoned in the workplace (we saw a tragic
the case of forced labour, and cannot be extended                    example of this in the news early in 2008, with the
to the rest of the core labour rights. This then raises              Morocco factory fire). The two concepts are thus
the issue of the interpretation of the term ‘prison’                 broadly comparable, but in this case, the burden of
and the concept of incarceration that it contains. A                 proof is difficult to satisfy. ILO enquiries and
comparison between prison work and forced labour                     reports might then serve to shore up an argument.
first requires a look at the definitions. Article 2 § 1              Accordingly, if Burma (a member of the WTO
of ILO convention n° 29 on forced labour (1930)                      since 1 January 1995) were to file a complaint
defines forced labour as follows: ‘For the purposes of               tomorrow before the DSB against Europe or the
this Convention the term ‘forced or compulsory labour’ shall         United States for the sanctions imposed on it in
mean all work or service which is exacted from any person            accordance with the ILO decision, it would seem
under the menace of any penalty and for which the said               that the AB would validate the commercial
person has not offered himself voluntarily’. Article 1 of            restrictions imposed.
convention n° 105 on the abolition of forced labour
(1957) ‘prohibits forced or compulsory labour as a method of         Furthermore, according to the deductive argument
mobilising and using labour for purposes of economic                 adduced by Serge Frossard 32, the definition of
development, as a means of labour discipline or as a                 prison work as ‘any work or service exacted from any
punishment for having participated in strikes’. Article 2            person as a consequence of a conviction in a court of law’
§ 2-c of convention n° 29 does not prohibit prison                   refers to sentences ‘where the penalty consists of the forced
work where it is perceived as ‘any work or service                   performance of labour’, because ‘if the labour is the
exacted from any person as a consequence of a conviction in a        consequence of the conviction, it is because the latter is the
court of law’. If it is not to be considered as forced               cause of the labour’. Thus there is a strong resemblance
labour, prison work must be ‘carried out under the                   between prison work and forced labour. The
supervision and control of a public authority’, and prison           problem then lies in the need for a court conviction
workers must not be ‘hired to or placed at the disposal of           in the definition of prison work. However, some
private individuals, companies or associations’.                     examples do show that in spite of judicial or
                                                                     administrative decisions, prison work is often akin
A literal interpretation of these texts would indicate               to forced labour. This is the case with the labour re-
that forced labour and prison work are two                           education camps in China. The jobs carried out in
different ideas. Yet the WTO judge does not use a                    such camps are considered to be prison work
literal interpretation of the texts: he makes a                      imposed by China as a punishment for persons
dynamic and evolving interpretation (Shrimp report).                 deemed to be ‘antisocial’ or to have committed
So international labour law has come on a long way                   ‘antisocial’ acts. Yet several experts (notably the
since 1947, and we have seen the consolidation of                    International Confederation of Free Trade Unions,
core labour rights, notably the ban on forced                        ICFTU, and the International Labour Office) have
labour. Thanks to the principle of effectiveness and                 demonstrated that this might in practice amount to
the updating of WTO law by the judge (see supra),                    forced labour, and since 2003, the International
the contemporary interpretation would lead to a                      Labour Office has been providing assistance with a
broader interpretation of prison work which might,
perhaps, allow for forced labour to be incorporated.
The point is that there are two types of prisons: de                 32 Serge Frossard et Jean-Marc Béraud, Les qualifications juridiques
jure prisons (a place of imprisonment in accordance                  en droit du travail, LGDJ, 2000, p. 216.


view to the reform of the system of education                                  report A global alliance against forced labour’36 states
through work33.                                                                that the nub of the debate is not the privatization of
                                                                               prisons, but more to do with ‘the securing of minimum
Another problem has to do with the coherence of                                safeguards for those detained in all kinds of prison
the States at national and international level. At                             establishment’.
international level, a State enacting a measure
designed to prohibit the import on to its territory of                         Today, the boundary between prison work and
articles manufactured thanks to forced labour                                  forced labour is more fluid, and the WTO judge
practices is supposed to give equal treatment to the                           might perhaps have an extensive interpretation of
countries in similar situations. So we need to rely on                         the term ‘prison’, especially when the exceptions are
surveys to establish non-compliance with the                                   not of strict interpretation and the WTO judge
conditions set out by convention n° 2934 in order to                           tends to adopt a flexible, evolving interpretation of
see, for each commercial partner, the types of                                 the exception clauses. This raises the question of
products on which commercial restrictions are to be                            how far the WTO judge can go in taking account of
imposed in order to be able to abide by the                                    rights outside the WTO, such as core labour rights.
obligation of coherence. But who then will dare to                             There is no certainty on whether the AB will agree
penalize China?                                                                to adopt such an interpretation of the term ‘prison’.
                                                                               So this route seems uncertain.
In addition, the position of the States will be less
solid if they themselves are not whiter than white.                            So there is no guarantee that the AB will be able
Yet many industrialized countries, such as the                                 and willing to move in this direction. For that
United States, Australia and the United Kingdom,                               reason, the legal experts encountered throughout
are privatizing their prisons or making use of                                 the study are more or less split as to the possibility
private prison labour. The privatization of prison                             of including forced labour under prison work.
work raises political and ethical questions. In
addition to being deprived of their liberty, prisoners                         Protection of public morals, a more likely
who are used by private enterprises are at risk of                             route
being exploited (possibility of losing their chances
                                                                               Morality may be defined as ‘that which relates to the
of early release if they refuse to work, wages and
                                                                               difference between right and wrong in rules of conduct37’ or
working conditions liable to be mediocre, in
                                                                               as ‘a set of rules of conduct considered as absolutely good’38.
particular where private enterprises are involved
                                                                               We may perceive morality as a set of values
…)35. Representatives of workers and employers are
                                                                               recognised by a given State collectively. The AB, in
concerned at the role of the private sector in prison
                                                                               its report Internet gambling (Antigua vs. United
work, the former with regard to decent working
                                                                               States), defines public morals as ‘standards of right and
conditions, from which the enterprises are not
                                                                               wrong that can be described as ‘belonging to, affecting, or
supposed to profit, and the latter on account of the
                                                                               concerning the community or nation’’. This term is very
difficulties involved in determining a fair wage for
                                                                               broad, and this makes it somewhat elastic. What is
the prisoners. The International Labour Office
                                                                               definite is that behind this idea of morality lies the
                                                                               question of human nature and human dignity. In
                                                                               that same report, the AB explains that ‘Members
                                                                               should be given some scope to define and apply for themselves
33  See the Global Report under the Follow-up to the ILO                       the concepts of ‘public morals’ and ‘public order’ in their
Declaration on Fundamental Principles and Rights at Work, ‘A                   respective territories, according to their own systems and scales
global alliance against forced labour’, International Labour                   of values’. So each society can define its own moral
Conference, 93rd session, 2005, p.29.
34 Remember: if it is not to be considered as forced labour,

prison work must be ‘carried out under the supervision and control of a        36 See the Global Report under the Follow-up to the ILO
public authority’, and prison workers must not be ‘hired to or placed
                                                                               Declaration on Fundamental Principles and Rights at Work, ‘A
at the disposal of private individuals, companies or associations’.
35 See the Global Report under the Follow-up to the ILO                        global alliance against forced labour’, International Labour
                                                                               Conference, 93rd session, 2005, p.31.
Declaration on Fundamental Principles and Rights at Work,
                                                                               37 Universal Dictionary of the English Language.
Stopping forced labour, International Labour Conference, 89th
session, 2001.                                                                 38 Le petit Robert de la langue française, 2006, Paris.


rules. For instance, some countries have been able                                Yet this is the case with core labour rights in
to close their borders to imports of alcohol. Why,                                Europe.
then, might other members not be able to impose
restrictions on imports of products manufactured                                  This indent calls for a relationship of necessity
under degrading working conditions for the sake of                                between the measure and the objective pursued.
protecting their public morals? It is hard to see how                             The AB has developed a method in order to
it would be possible to limit the sovereign                                       establish when a measure could be described as
discretion of the Member States of the WTO                                        ‘necessary’. So we need to strike a balance between
regarding the definition of an affront to their public                            various factors such as a: 1) the scale of the
morals. Accordingly, ‘a conception of public morals                               common interest being protected; 2) the
excluding the notion of core rights would quite simply run                        contribution made by the measure to the realization
counter to the meaning customarily attributed today to that                       of the objective pursued; 3) the impact of the
                                                                                  measure on international trade42.
concept’’39. The report by the United Nations High
Commission on Human Rights 40 issued in 2005                                      In the eventuality of a dispute, the defendant will
states that the virtual absence of debate around the                              need to prove prima facie the necessity for the
idea of public morals during the negotiations which                               measure. Yet as we have seen, the more essential
led to the GATT means that there was some sort of                                 the values being protected, the more readily the AB
common definition of public morals based upon                                     agrees to consider the measure adopted with a view
similar clauses inserted in the other commercial                                  to their protection as necessary. Yet do any more
treaties. This report goes further, explaining that the                           essential values exist than the core rights?
analysis of the prior treaties has allowed Steve
                                                                                  A measure restricting trade which is designed to
Charnovitz41 to state that ‘the measures covered by                               protect core labour rights might thus be covered by
Article XX-a apparently concerned at least slavery, arms,                         Article XX. We next need to explore whether, in its
drugs, alcoholic drinks, pornography, religion, forced labour                     application, the measure passed by the Member
and the protection of animals’. Forced labour and slavery                         State does not constitute a disguised restriction on
are therefore, at least, included under public morals.                            international trade or an arbitrary or unjustifiable
Yet these ideas today fall under human rights. The                                discrimination. This is the test in the introductory
report thus concludes that ‘in that context, the                                  heading.
expression ‘public morals’ might extend to human rights’.
                                                                                  The test in the introductory heading
The only condition is the obligation of coherence in                              The introductory heading imposes an obligation of
how to treat countries finding themselves in                                      good faith and coherence upon the States.
identical situations and in the definition of national
public morals. The objective, if it is to be                                      The AB penalizes unilateral actions. In order to
considered legitimate, must be embedded in the                                    prove its good faith, the State must organize
culture and the sociological and historical realities                             consultation with the exporting countries affected
of the country issuing the measure restricting trade.                             by the measure43, so as to obtain an international
                                                                                  agreement on protective mechanisms. The question
                                                                                  of human rights, like the environmental question,
                                                                                  represents a common interest which has to be
39 Robert Howse, ‘Back to Court After Shrimp/Turtle? Almost                       resolved by co-operation. Yet there are already in
But Not Quite Yet: India’s Short-Lived Challenge to Labor and                     existence international agreements on core labour
Environmental Exceptions in the European Union’s
Generalized System of Preferences’, American University
International Law Review, 2003, vol. 18, n° 6, p. 1368.                           42  David Luff, Le droit de l’OMC, analyse critique, Bruylant,
40 UN High Commission for Human Rights, ‘Les droits de                            Brussels, 2004, 1 277 p.
l’Homme et les accords commerciaux internationaux, utilisation des clauses        43 AB report, WT/DS58, United States – Import prohibition of certain

d'exception générales pour la protection des droits de l’Homme’, United           shrimp and shrimp products, 12 October 1998, India, Malaysia,
Nations, New York and Geneva, 2005, 33 p. (p.13).                                 Pakistan and Thailand vs. US. Obligation of means and not of
41 Steve Charnovitz, ‘The Moral Exception in Trade Policy’, in                    results: the States are not obliged to reach an agreement, the
Trade Law and Global Governance, Cameron, May 2002, pp. 325-                      essential point is that they have consulted in good faith with the
376 (p. 374).                                                                     States concerned by the measure.


rights (ILO declaration in 1998, Covenant on                                       question is no longer whether a partnership is needed, but
Economic, Social and Cultural Rights). So the good                                 how it can be rendered effective’46.
faith of the State might be presumed if the measure
adopted by that State had as its objective to ensure                               Trade unions have a low profile in the WTO for
compliance with an international commitment                                        various reasons: shortage of resources, training and
regarding rights that the exporting member has                                     expertise, as well as strategy problems. Yet an
undertaken to respect. Quite obviously, a                                          international organization like the WTO takes
presumption of good faith might be established                                     decisions which have a serious bearing upon the
where the objective of the measure is respect for                                  labour market and core labour rights. Despite the
the standards of jus cogens (see supra) and the                                    opaqueness of the system, mechanisms do exist
international conventions which establish a                                        which might allow the trade unions to make their
universal competence44 (genocide, slavery, racial                                  voices heard either formally or informally. Some
discrimination, torture, crimes against humanity,                                  non-governmental organizations (NGOs) have
etc). Finally, the 1998 declaration establishes                                    grasped this and are present at various levels. The
principles which it is mandatory for all ILO                                       wording of the agreements allows openings to civil
Member States to respect (see supra).                                              society.

                                                                                   3.1. The route of the treaty and
3. Leg a l a ve nu es f or                                                         the mechanisms available
getting trade unions                                                               Legal backing exists to bring pressure to bear and to
                                                                                   negotiate with the Member States. Everything then
taken into account by                                                              boils down to political determination and sets of
                                                                                   players, but the texts of the WTO agreements make
the W TO                                                                           it possible to open up the WTO to greater
                                                                                   transparency and greater democratisation of the way
                                                                                   in which it operates.
Global governance is a work in progress. Civil
society cannot be sidelined from this process                                      The waiver mechanism (Art. IX-3 of the
without the risk of destroying the very concept of                                 Marrakech agreement)
democracy. Accordingly, the need to take account
                                                                                   This procedure consists of asking the members for
of the demands of civil society and to democratise
                                                                                   a temporary authorisation not to abide by certain
international organizations is pressing today. The
                                                                                   common disciplines in exceptional circumstances
WTO suffers from a major lack of legitimacy,
                                                                                   and for a longer or shorter period. It involves the
notably because it ‘is resistant to any opening up of its
                                                                                   application of complex procedures (for the general
normative production to private players’45. It is essential
                                                                                   procedure, see the box infra) of which the objective
for the welfare, and thus the effectiveness, of the
                                                                                   is to allow the WTO members injured by the waiver
WTO to be open to civil society. Indeed, ‘the
                                                                                   adopted to use negotiations or compensation to
                                                                                   restore a balance of reciprocal concessions.

44 Certain crimes are so serious that they affect the international
community as a whole, and consequently, all States have the
right, if not the obligation, to bring legal proceedings against
those committing such crimes, irrespective of where the crime
has been committed or the nationality of the perpetrator or the
45 Laurence Dubin, Rozen Noguellou, La participation des personnes                 46 OMC : sortir de l'impasse par la réforme, Senate information report

privées dans les institutions administratives globales, p. 12, available on        n° 423, by Jean Bizet, annexed to the minutes of the session on
the             Internet              at:              http://chairemadp.          27 June 2006, p. 84, available on the Internet at:                    


    A famous precedent: the                      Kimberley             and the non-discriminatory application of the
    process certification system                                       quantitative restrictions (Article XIII:1).

The Kimberley process certification system is a                        Accordingly, the States parties to the process can
unique initiative by the government authorities, the                   allow on to their market only certified diamonds
international diamond industry and civil society                       (the Kimberley process provides that every
designed to combat conflict diamonds. During the                       participant should ‘ensure that no shipment of rough
1990s, certain African conflicts were being                            diamonds is imported or exported to a non-Participant’.
bankrolled by the diamond trade (for instance in                       They therefore reintroduced barriers to the trade in
Liberia and Côte d’Ivoire, both countries being                        diamonds without running the risk of being
subject to a diamond embargo). The conquest of                         penalized by the DSB.
the States which had diamonds in their territories
was growing into an issue that was becoming all the
more important as the diamond trade was
facilitating the purchase of weapons.
A waiver was accordingly called for by eleven
members of the WTO (Australia, Brazil, Canada,
Korea, the United Arab Emirates, the United States,
Israel, Japan, the Philippines, Sierra Leone and
Thailand). The aim was to limit trade in conflict
diamonds while supporting the legitimate diamond
On 5 November 2002, the participants in the
Kimberley process published the Interlaken
declaration, in which they announced their intention
to implement an international certification system
for rough diamonds, in order to sever the ties
between armed conflicts and the rough diamond
On 26 February 2003, the WTO’s Council for
Trade in Goods recommended to the General
Council that it give members so requesting a waiver
for the commercial measures taken under the
Kimberley process certification system. This
decision recognised ‘the extraordinary humanitarian
nature of this issue and the devastating impact of conflicts
fuelled by trade in conflict diamonds on the peace, safety and
security of people in affected countries and the systematic and
gross human rights violations that have been perpetrated in
such conflicts’.
The General Council thus decided that as from 1
January 2003, commercial measures taken in line
with the Kimberley process by these eleven
members and any others joining them would be
exempted from the GATT provisions regarding the
most favoured nation treatment (Article I:1), the
elimination of quantitative restrictions (Article XI:1)


                           General procedure


Application to the most serious violations of                       However, for its part, the WTO General Council,
core labour rights                                                  simply adopted, on 18 July 1996, the ‘Guidelines for
                                                                    arrangements on relations with Non-Governmental
The waiver granted to the Kimberley process forms                   Organizations’ whose purpose is to improve
an important precedent, as it is the first time that                transparency. But these guidelines offer no more
the WTO has approved a waiver for the sake of                       than a framework for informal relations and are too
protecting human rights.                                            vague to give a clear status to civil society.
We know that some governments and some
businesses are flouting the most fundamental labour                 But they are explicit on one point: ‘it would not be
                                                                    possible for NGOs to be directly involved in the work of the
rights and keeping populations in situations
intolerable for human dignity, and therefore for the                WTO or its meetings’ (§ 6).
international community as a whole. No                              Article V-2 might make it possible to establish an
government and no business should be able to                        accreditation system, as is the case in certain UN
profit from such oppression. That is why the trade                  bodies. It is possible to set up a comparable system
unions and NGOs should be urging the WTO                            at the WTO: this would also facilitate the amicus
Member States to set up a certification process                     curiae procedure, preventing the panels from being
comparable to the one under the Kimberley process                   clogged up.
so as not to allow on to their markets products
manufactured under conditions which do not                          Negotiation of WTO law remains purely inter-State,
respect the most fundamental labour rights (forced                  for want of political will from the Member States.
labour, the worst forms of child labour, etc).                      So non-State organizations can be consulted by the
                                                                    Secretariat or the specific committees at the WTO
Article V-2 and the WTO’s minimalism                                on no more than an informal basis.
Article V-2 of the agreement setting up the WTO,                        The informal route
entitled ‘Relations with Other Organizations’,
stipulates that ‘The General Council may make                       These advances, however minimalist, have been
appropriate arrangements for consultation and cooperation           welcome and in practice have made it possible to
with non-governmental organizations concerned with matters          establish sustained relations between the NGOs,
related to those of the WTO’. This provides a solid legal           the WTO Secretariat and the other specific
footing which enables institutionalized co-operation                committees. NGOs have gained access to certain
between the trade unions and the General Council.                   internal documents and been able to participate in
                                                                    an annual forum and attend the plenary sessions of
     The formal route                                               the WTO Ministerial Conferences. However, they
                                                                    are not allowed to make any proposals. Moreover,
Article 71 of the United Nations Charter lays down                  information sessions about the meetings of the
the same type of provision: ‘The Economic and Social                WTO councils and committees are staged for the
Council may make suitable arrangements for consultation             civil society representatives, but essentially for those
with non-governmental organizations which are concerned             based in Geneva.
with matters within its competence. Such arrangements may
be made with international organizations and, where                 NGOs have to satisfy three criteria in order to be
appropriate, with national organizations after consultation         taken into consideration. They must:
with the Member of the United Nations concerned’. This                    be     distinguished  from  international
article has enabled the United Nations to give                            organizations created by an international
consultative status to over 2000 NGOs47.                                  agreement;
                                                                          demonstrate their expertise or their interest in
                                                                          one of the areas concerned by the WTO;
                                                                          demonstrate that they do not serve the
47 See the article by Laurence Dubin and Rozen Noguellou                  interests of a government by putting forward
(p. 12) for a more precise comparison of these two articles.              independent proposals.
Article referred to in footnote n° 19.


A minima, the NGOs demand that their status be                               every four years for the next 16 members;
aligned more closely on that of journalists, because                         every six years for the others;
journalists ‘accredited’48 by the WTO have access to
WTO premises (but not the negotiating                                         a longer period may be set for the LDCs.
committees) and can also attend demonstrations                          The review procedure takes about six months and is
organized by the WTO, as well as Ministerial                            exclusively political in nature. So it has no legal
Conferences. However, the criteria for WTO                              scope and the reports coming out of it cannot be
journalist accreditation actually state clearly that                    used before the DSB. After a visit to the Member
‘media accreditation is not accorded to the information outlets         States by the WTO Secretariat and interviews with
of non-governmental organizations’. Yet NGOs, like                      the officials, a report is drawn up. In reply, the
journalists, participate in providing information to                    Member State under review must account for itself
civil society and improving transparency. This                          in a second written report. The whole dossier is
means that it would be timely to extend to NGOs                         sent on to the remaining members, which can ask
the status granted to journalists.                                      questions in writing, to which the Member State
                                                                        under review must likewise reply in writing. The
Review of trade policies (Annexes 3 to the                              next stage is a two- or three-day meeting on the two
Marrakech agreement)                                                    reports. The next country to be reviewed is China.
                                                                        In the course of this review, the States have to
The review of trade policies is a political, economic                   justify their political and commercial choices. So it
and institutional analysis of the countries examined.                   would be interesting to include non-State players
The purpose of this mechanism is to allow the                           here.
WTO members to look at the commercial policies
and practices set up by the other members in order                         Proposal for this review to be opened up
to evaluate their impact on the operation of the                           to interests other than commercial interests
multilateral commercial system.
                                                                        As we have seen earlier, because of the growing
     Procedure                                                          interdependence between States, some areas are of
                                                                        interest to the international community as a whole,
This policy is administered by the Trade Policy
                                                                        and sustainable development is one of these.
Review Body (TPRB). It is made up of all the WTO
                                                                        Accordingly, reviewing the policies of the Member
members: this makes it the General Council
                                                                        States on these subjects is just as important to
working under special rules and procedures. The
                                                                        international stability as reviewing trade policies in
reviews are peer evaluations, even if the bulk of the
preparatory work is carried out by the WTO
Secretariat.                                                            As things stand, civil society does not intervene in
                                                                        the review of trade policies. It is not consulted, and
This procedure relies mainly on the mechanism for
                                                                        cannot attend the debates. The reports are
the review of trade policies. All WTO members are
                                                                        published after the final meeting. Several proposals
subject to a review, of which the frequency varies in
                                                                        can be put forward to make it possible to include
light of their share in global trade:
                                                                        the civil society players in this review at best: for
      every two years for the 4 members holding the                     example, consulting the non-State players from the
      biggest shares in global trade (European                          countries being reviewed during trips or giving non-
      Union, United States, Japan, China);                              State players the right to attend the final meeting.
                                                                        This idea has the backing of the European
                                                                        Commission, which has already framed demands to
48 All journalists applying for accreditation must submit proof         the General Council, which have gone unanswered.
that they represent a bona fide media organization and that they
have a track record of reporting for media organizations on
trade related matters. Applications are considered on a case-by-
case basis and the decisions of IMRD are final. IMRD reserves
the right to deny or withdraw accreditation of journalists who
abuse the privileges so extended.


Opening of hearings to civil society                                             the Understanding on Rules and Procedures
                                                                                 governing the Settlement of Disputes, entitled
Greater transparency could be achieved if the                                    ‘Right to Seek Information’, which states that ‘Each
hearings of the AB and the panels were to be                                     panel shall have the right to seek information and technical
opened up.                                                                       advice from any individual or body which it deems
Before the internal tribunals, hearings are public.                              appropriate’.
Although the persons present cannot intervene,                                       Before the panels
they do attend the meetings. At the WTO, hearings
are conducted in camera and are not open to the                                  Article 13 of the Understanding on Rules and
public. Yet Article V-2 of the Marrakech agreement                               Procedures governing the Settlement of Disputes
allows the General Council to adopt a decision to                                thus      authorises      the     panels       to    request
that effect.                                                                     complementary information from any person or any
                                                                                 body. In the Shrimp/Turtles case, three NGOs had
In September 2005, as part of the dispute EC –                                   submitted a written opinion to the panel which the
Measures concerning meat and meat products (hormones),                           latter had not asked for. The AB ruled that the
the parties agreed to open the doors of the tribunal                             panel could accept all unsolicited opinions and that
to the public at large. This event proves that the                               ‘authority to seek information is not properly equated with a
texts of the WTO agreements are flexible enough to                               prohibition on accepting information which has been
allow hearings to be opened up to civil society. The                             submitted without having been requested by a panel52’.
European Union and the United States would back
such demands to the WTO 49.                                                      NGOs now have the option of making amicus curiae
                                                                                 submissions to the panels, and the panels have the
Pending such an advance, a procedural loophole has                               discretion to take account of them or reject them
made it possible for the dispute settlement                                      (with the exception of amici submissions appended
procedure to be opened up to civil society, which is                             to the records of the States parties to the dispute,
now able to lodge amicus curiae 50 submissions.                                  which the panels would be obliged to take into
3.2. The procedural route: amicus                                                    Before the Appellate Body
curiae                                                                           Still in the Shrimp case, the AB agreed to accept
                                                                                 amicus curiae submissions presented for the first time
Before the DSB, the procedure takes place on an                                  in appeal, where they are appended to the
inter-State basis. Accordingly, amicus curiae (written                           communication from the States or filed separately
submissions from non-State organizations or                                      but endorsed by the latter (in the event, the United
private individuals) is ‘the procedural loophole through                         States)54. Although the AB did not rely on these
which an individual, company or association can dive in when                     submissions when handing down its decision, this
the status of a party is the preserve of the States’51. The                      solution was hotly contested.
WTO agreements did not specifically provide for
such a procedure.

Formation of practice
In 2005 the issue was to establish whether the
WTO judge would allow amicus curiae submissions.
For their acceptance, the AB drew on Article 13 of
                                                                                 52 § 108, AB report, WT/DS58, United States – Import prohibition of

                                                                                 certain shrimp and shrimp products, 12 October 1998, India,
                                                                                 Malaysia, Pakistan and Thailand vs. US .
49Heard during the conversations.                                                53 See article by Brigitte Stern, ‘L’intervention des tiers dans le
50Meaning ‘friends of the court’ .                                               contentieux de l’OMC’, RGDIP, 2003, n° 2, vol 107, pp. 257-
51 Hervé Ascencio, ‘L'amicus curiae devant les juridictions                      299.
internationales’, Revue générale de droit international public, 2001, pp.        54 Hélène Ruiz-Fabri, ‘Chronique de la jurisprudence du système

897-929.                                                                         de règlement des différends’, JDI, 2001, vol. 129, n° 3, p. 903.


A contested practice                                                          A reserved practice
This new procedure has come under fire from both                              Despite the lively reaction from the Member States,
legal and political quarters.                                                 the AB has continued to welcome amicus curiae
                                                                              submissions. But this procedure remains a practice
     The political criticisms                                                 established by the AB, and the Member States have
At the start, the States were quite resistant to the                          not taken it on board. Accordingly, no clear
idea of allowing the civil society players to                                 procedure has been adopted and recorded in the
participate in a procedure which was supposed to                              texts of the WTO agreements. The panels are thus
be exclusively inter-State. But the essential objection                       cautious when faced with written submissions from
is both political and legal, and was raised by both                           private persons, often deciding, after having agreed
the countries in the North and those in the South.                            to receive them, not to take them into account in
It has to do with weighing down the procedure                                 their report 57.
both for the panels which have to have rules to                               So the AB adopts an ambivalent approach, being
allow them to settle their relations with the NGOs                            very bold in theory but moderate in practice. We
and for the States which will need to take                                    might quote Brigitte Stern and speak of ‘a door which
cognisance of the submissions and even, on                                    seems to be standing wide open but which is actually an
occasion, reply to them. The DCs also held that this                          optical illusion’. There might be a message behind this
procedure was liable to amount to a                                           attitude: the States have to get past this in the
disproportionate burden on them. Finally, the DCs                             negotiations if a precise procedure is to be
argued that their NGOs were ill-equipped to benefit                           established. The European Community today has
from this procedure and noted that almost all the                             accepted the participation of third parties and the
submissions came from NGOs in the countries in                                Commission is working on the framing of a clear
the North.                                                                    amicus curiae procedure which the European Union
     The legal criticisms
                                                                              might present to the WTO. The DCs are also less
                                                                              hostile to such a procedure, and Morocco used it in
The Shrimp report was criticised for the extremely                            the Sardines 58 case in order to intervene before the
flexible interpretation by the AB of the request                              AB, although it had not set itself up as a third party
action. It was criticised for incorporating the                               at the panel stage59. The AB has continued along
possibility for panels to request information and the                         this line of maximum openness and has not seen fit
possibility of accepting unsolicited information. An                          to treat WTO members differently from non-WTO
exceptional meeting of the General Council was                                members. The submission filed by Morocco was
called on 22 November 2000 to discuss the                                     accepted.
implications of the decisions taken by the AB in the
Asbestos55 case. Members sought assurances that the                           An issue for trade unionists
inter-State nature of the dispute settlement                                  Although it is not a legal right, but a possibility
procedure would not be compromised. Short of                                  which relies on the discretion of the arbiters, the
amending the Understanding on Rules and                                       possibility of making amicus curiae submissions
Procedures governing the Settlement of Disputes,
they had no way to amend this procedure56, but the
Member States (with the exception of the United
                                                                              57 This was what happened in the Shrimp case, because the AB
States) were able to give voice to their hostility vis-                       had taken account only of the American arguments, and in the
à-vis this new procedure and to demonstrate their                             Asbestos case, where it refused all the authorisations to file a
determination to retain control over the procedure                            communication even if framed in accordance with the
before the panels.                                                            procedure which the AB had set in place and posted on the
                                                                              58 AB report, European Communities – Trade description of sardines,

                                                                              WT/DS/231/AB/R, 26 September 2002.
                                                                              59 Any WTO member with a substantial interest in a case
55 AB report, EC – Measures affecting asbestos and asbestos-containing        brought before a panel can assert its point of view on the
products, WT/DS135/AB/R, 12 March 2001.                                       dispute via written communications which respect the mandate
56 Hélène Ruiz-Fabri, see footnote n° 28.                                     of the panel and in that way become a third party.


allows civil society to make its opinions heard both
by the WTO judge and by the States parties to the
dispute. Even if the judgement groups often say
that they do not take account of such submissions
in their final decision, they have still read them and
heard the arguments thus adduced.
We then have to stress one point: the right to make
amicus curiae submissions is not the exclusive
preserve of the NGOs. The text on which the AB
relied in deciding to accept such submissions refers
to ‘any person or any body’. This means that university
professors       or     associations    of    industry
representatives have already filed amici submissions.
As mentioned in footnote n° 30 to the AB report
EC – Measures affecting asbestos and asbestos-containing
products, the organizations having filed an amicus
submission in the course of this procedure include a
trade union (the Canadian Steelworkers’ Union).
The communications presented by the various
organizations in this case have been rejected not by
virtue of the nature of the organizations submitting
them, but on procedural grounds. Accordingly, the
possibility for trade unions to file amicus curiae
submissions has already been accepted.
This makes for a real issue for the trade unions,
particularly where an examination of the various
amicus curiae submissions filed before the AB or
before the panels shows that it is mainly the players
in the economic sector concerned by the decision
which are filing written submissions. So the
employers (particularly multinationals) are over-
represented in this procedure.


P art II
The economic routes

                                                                education and health system, or in a nutshell,
                                                                collective goods so that all businesses can both
1. L a b o u r r i g h t s , a n                                thrive and find the goods and services necessary
                                                                for the operation of the internal market, be it in
economic perspective                                            terms of goods and services or labour.

on         the              I LO                                The two approaches which, in a Keynesian
                                                                economy, are organized in such a way that the
conventions:            social                                  labour market regulations reconcile the two
                                                                aspects (supply and demand) within a given
dumping as a vector                                             national area, have been blown apart by the
                                                                neoclassical switch thirty years ago in an enlarged
for globalization?                                              global area.
                                                                To put it another way, the current situation
                                                                invites the majority of countries to favour the
The dichotomy between the lack of labour                        entrepreneur in his freedom to contract out staff
standards and disguised protectionism is part of                on the one hand and to rely on external income
the debate that has been in stalemate for over ten              to fund the infrastructures and collective goods
years, the two sides of the coin being:                         that he needs on the other.
     the emerging and developing countries
     reject any labour standard to export to the                This revamp consists of focusing first and
     markets in the developed countries;                        foremost on labour rights from the point of view
                                                                of simple price competition, and to the detriment
     business leaders in the developed countries,               of an approach incorporating productivity and
     wishing to keep the lid on claims for wages                capital formation. It is consistent with the
     or investments by their staff representatives,             method of development through exports on the
     argue the extremely low cost of labour in                  global market as it has been going on over the
     the emerging countries and thereby raise the               last thirty years in some countries. In fact it is
     spectre of relocation.                                     thanks to access to solvent markets in the
In point of fact, we are witnessing a line of                   developed countries bringing about a drop in the
argument that calls on two dimensions between                   relative prices of many consumer goods that
which a fresh relationship has been established                 these countries have gradually improved
which identifies the development of a country                   productive channels and built up a national
with the development of the company. On the                     economy. The result has been the downgrading
one hand, any entrepreneur obviously benefits                   of a certain number of industries in the
from paying his staff less and being able to run                developed countries by substitution and by
his business from his own perception of the                     relocation.
needs being expressed by his clients, while on the
other, the country needs infrastructures, an


That being so, however, the question of social                  4.       We renew our commitment to the
dumping and export subsidies is framed                          observance of internationally recognized core
differently, in the sense that businesses, if they              labour standards. The International Labour
are facing up to the majority of their direct                   Organization (ILO) is the competent body to
production costs, are in no way facing up to their              set and deal with these standards, and we
indirect production costs and overheads, and                    affirm our support for its work in promoting
these include core labour rights.                               them. We believe that economic growth and
Under this configuration, there would be social                 development fostered by increased trade and
dumping construed as an approach designed to                    further trade liberalization contribute to the
make international competitiveness reliant                      promotion of these standards. We reject the
upon a devaluation of the cost of labour                        use of labour standards for protectionist
through non-compliance with core labour                         purposes, and agree that the comparative
rights.                                                         advantage of countries, particularly low-wage
                                                                developing countries, must in no way be put
This definition of social dumping differs from                  into question. In this regard, we note that the
that of dumping enshrined in the GATT                           WTO and ILO Secretariats will continue
agreements applied to international trade, which                their existing collaboration.
relates to:
     the sale for export of goods at prices lower
                                                                The point is not to reduce the current phase of
     than those on the internal market;
                                                                globalization to the implementation of
      the sale of goods at a price which does not               generalized social dumping, but to stress how it
      cover the production price.                               can be important on the basis of an interpretation
However, it is still very close to it, in the case              of this declaration where the promotion of labour
where the education and skills of the workforce –               standards is a derivative of trade and its
and the social infrastructures in the widest sense              liberalization.
– in no way translate into the sale price of the
                                                                Instead, we demonstrate that respect for labour
products exported. This is the case inter alia with
                                                                rights is not incompatible with maintaining a
free export areas for manufactured goods, which
                                                                comparative advantage on account of low wages.
benefit under certain conditions from an
exception scheme which often combines
violations to labour rights and subsidies to                    2. Economic
businesses for exports, a practice which is at odds
with the rules of the WTO.                                      interpretations of t he
What makes the question all the more worth                      eight       fundamental
raising is the Singapore ministerial declaration, of
which we reproduce below § 4 relating to labour                 I LO co n ve n tio ns

                                                                We base our arguments here on the ratifications
                                                                by the States. The gap between ratification and
                                                                economic and social realities exists, and can in
                                                                certain cases make ratification a purely formal
                                                                operation. But the fact remains that the
                                                                cartography of the ratifications, beyond the
                                                                observations, tells us something about the logic at


2.1. Ratifications: development                                      very low in the case of trade union freedom,
                                                                     a measure whose political dimension seems
index, or State posture?                                             paramount, insofar as it cannot be reduced
                                                                     to a matter of the price of labour and needs
Broadly speaking, a number of studies tend to                        to be perceived from the economic point of
show that violations of fundamental human                            view as a powerful agent for the regulation
rights allow for an increase in trade dealings                       and development of a country’s internal
through the exploitation of the comparative                          market.
advantages that they yield. Economists who have
worked on the subject agree, however, that the                  This is just as applicable for the developed
link between commercial transactions and respect                countries as for the emerging countries.
of labour standards is indeterminate. Works                     With regard to child labour and forced labour,
underway (by Rémi Bazillier as well as Clotilde                 their existence seems to be an extension to
Granger and Marc Siroën) are looking into                       vulnerable and dependent populations of the
instruments to measure respect for labour                       comparative advantage formed by plentiful cheap
standards by setting up synthetic indices.                      labour. Their economic effects seem to be
For our part, we shall begin by exploring the                   established via the price competitiveness that
potential economic impact of each standard and                  they give employers who exploit the labour of
measuring it by reference to their ratification. In             these populations. It is, however, as well to be
order to enable this exercise to be carried out, we             cautious, for the effects are contradictory
have restricted ourselves to the eight fundamental              between the benefits gained by direct employers
ILO conventions, which can be assembled two                     and the negative indirect effects across the
by two.                                                         economy as a whole. So it is easy to show that
                                                                the increase in work by adults, which replaces
In the case of discrimination in terms of access                work by children, has a stabilising effect on the
to employment or wages, be it because of                        supply of labour and on the comparative
gender, origin or skin colour, it is difficult to               advantage resulting from it.
justify the contribution made by such actions in
terms of growth or development by economic                      The lack of ratification of the fundamental ILO
arguments. On the contrary: the distortions on                  conventions, which is supposed to represent the
the labour market which arise as a result serve to              level of development achieved by a country or an
dampen growth.                                                  economic area, reflects ideological postures, like
                                                                that of the United States, just as much as the
Conversely, trade union freedom and the right                   defence of the interests of certain economic
to collective bargaining, because of its effect on              sectors angled towards exports within the
the balance of power within businesses and on                   developing countries.
the labour and employment markets, has an
indisputable positive effect on the level of wages              In this first approach, we shall conclude that the
and income of the populations employed. But                     ratifications of the ILO conventions relating to
what seems positive for wage levels and the                     fundamental human rights are driven by many
development of purchasing power for workers                     complex factors combining politics and
and a country’s internal market might be offset                 economics by the signatory States.
by an erosion in the competitiveness of supply
for the export sector.
The economic interpretation of these first four
conventions ultimately corresponds quite well to
their level of ratification:
     very high in the case of the fight against
     discrimination, a measure designed for the
     smooth running of the supply of labour;


                                                                we have to factor in the cost of the social
3. Labour rights and                                            protection paid by the employer to obtain the
international trade                                             cost of the labour, whereas in China, social
                                                                protection is non-existent in many cases, because
                                                                it is not funded by businesses. The violation of
                                                                labour rights in China would lead us to the view
3.1. The      question     of  the                              that even beyond the remuneration cited here,
                                                                the worker is deprived of it, in the case of child
comparative advantage linked to                                 labour and forced labour, or receives no more
the violation of labour rights                                  than part of it, in the case of discrimination
                                                                associated for example with his status as an
Does a correlation exist between respect for the                internal migrant. In any event, the difference with
ILO standards and a country’s commercial                        work carried out under average wage conditions
performance? By commercial performance, we                      will be a maximum of 112.35. Our conclusion
mean its contemporary form under the name of                    from this is that the difference between the cost
competitiveness. The commercial surplus                         of labour is so great ( 1,174 ) that the
obtained thus rests on the rational and effective               application of labour rights would do nothing to
exploitation of the comparative advantages of the               reduce the competitiveness of the Chinese
territory administered by a State capable of                    worker or manager compared to his European
transforming them into competitive advantages.                  counterpart.
We shall explore this question in two ways:                     Conversely, it is not respect for labour rights that
     Do the fundamental ILO conventions                         forms a handicap for the countries complying
     constitute a handicap for the economies                    with them. In the case of the low labour-intensity
     applying them?                                             sectors, the capital remuneration share, on the
                                                                one hand, and the qualification of the workers in
     Does the lack of ratification or the violation
                                                                its twofold dimension (involvement of labour
     of the ILO standards constitute a
                                                                and innovation), on the other, strip a great deal
     comparative advantage, and if so, at what
                                                                of relevance from comparative advantages
                                                                deriving from violations of labour rights.
This is a difficult question to answer across all the
sectors.                                                        At this stage in the argument, therefore, we note
                                                                that while the goods traded on the global market
Under a first approach, the economic sectors                    have indeed been produced under conditions not
with high labour intensity can effectively be put               respectful of labour rights, it is not that factor
at a disadvantage by a higher labour price                      that gives them a comparative advantage, but the
deriving directly from the application of the                   differences in standards of living and purchasing
labour standards. But we cannot leave it at this                power. The point is that the price gap for the
initial approximation.                                          consumer between goods coming from countries
The next question is therefore whether the gap                  which do respect labour rights and others which
between the price of one hour of labour obtained                come from countries which do not is residual
and paid according to the degree of compliance                  compared to the price gap in labour between the
with labour rights is reflected in the final sale               developed countries and the emerging countries.
price to the consumer. We can take it that the gap              If the benefit does not accrue to the consumer,
between one situation and the other is marginal.                where does it go? In fact it is shared between the
Let us take an example: in the Chinese                          local Mr Big and the distributor who has access
automobile manufacturing industry in 2005, the                  to the global markets, to the detriment of the
average wage across all sectors was 112.35 per                  development of the exporting country. The
month, while the minimum gross wage applicable                  violation of labour rights is therefore an obstacle
in France stood at 1,286.09. In the French case,                to development through the passing on of the
                                                                producers’ margins to the distributors.


3.2. Is the development of                                      4. Of trade and
international trade favourable to
                                                                development: the
better respect for labour rights?
                                                                evolution of economic
What would be the impact of opening up
international trade in terms of respect for labour              prospects
Over its history, the ILO has always responded
that only economic progress allows social                       Development theories over the course of the 20th
                                                                century have followed a course which logically
progress, and that social progress cannot be
                                                                has been characterised by two cardinal divisions
imposed, but only adopted and implemented on a
voluntary footing by the States. Conversely, social             between North and South on the one hand and
progress can also drive economic development,                   East and West on the other.
notably the expansion of a country’s international
trade dealings.
                                                                4.1. From international trade as
The recent example of Cambodia, in a bilateral                  an enemy of development …
agreement with the United States relating to the
textile/clothing sector, shows that progress in                 Imperialism theories, also known as ‘dependency
terms of respect for human rights can be behind                 theories’, notably in Latin America, have long
economic development, once distributors and                     stated that only a self-centred development
consumers are properly informed about the                       strategy would deliver an escape from under-
qualitative provenance of products. In the same                 development. This approach, which enjoyed huge
way, in a previous period in Cambodia, or in the                support from the governments participating in
case of Myanmar today, closure to trade can                     the Bandung conference in 1955, held that
underscore a generalized violation of human                     economic and political independence was
rights which is in no way restricted to the labour              achieved by the development of the internal
context. In Asia again, the case of the Republic of             market, as a synonym for an increase in the
Korea delivers a similar illustration of the co-                populations’ standard of living.
ordinated development of international trade and
the internal market.                                            Accordingly, in the period between 1930 and the
                                                                end of the 1960s, strategies for industrialization
Nevertheless, we can see here that we are a long                by substitution of imports arose in many third-
way from the somewhat teleological assertion                    World countries. In order to industrialize, these
contained in the paragraph from the WTO cited                   countries had initially to shield themselves from
above which posits that progression in the                      the global market dominated by the imperialist
application of labour standards results from the                powers in order to allow their emerging
liberalization of trade.                                        industries to establish themselves before facing
                                                                up to international competition. For the countries
                                                                producing raw materials, what this meant first of
                                                                all was the nationalization of the firms producing
                                                                the primary goods.
                                                                Those countries which were then regarded as
                                                                ‘developing’ were doing no more than imitating
                                                                the course chosen at the end of the 19th century
                                                                by both the United States when faced with the
                                                                British Empire and Europe, and by Japan when
                                                                faced with the rest of the world. With a very few
                                                                exceptions, control of the tools of development


by means of national or public control of the                       started after the Second World War (the end
production of raw materials remains the legacy of                   of the post-war boom).
this age characterised by decolonisation.                      The development during the 1980s of the Asian
Industrial and agricultural raw materials are even             dragon economies – South Korea, Taiwan and to
today the main foreign currency earners for the                a lesser extent Singapore and Hong Kong –
overwhelming majority of States in the                         tended to demonstrate that it was possible to
developing countries. After a hiatus of 20 years,              escape from under-development not through the
we are even seeing, particularly in South America,             substitution of imports, but through the
the return of control of the basic industries by               development of exports. In these countries, the
the public powers (in the likes of Peru, Bolivia               expansion of industrial exports was primarily
and Venezuela).                                                enabled by the opening of the US market. This is
However, the economic and political constructs                 a geostrategic component which is essential to
emerging from this thinking on development                     the understanding of this phenomenon.
economics, which has been largely dominant for                 However, this path does lead to the overturning
40 years, have collided with a number of                       of the strategic prospects of the countries seeking
contradictions, of which two are worth singling                a way out of under-development: the main thrust
out in economic terms:                                         of development is now via industrial exports on
                                                               the global market, and no longer the substitution
     commercial protection has often turned into               of imports on the internal markets.
     market power without competition in the
     hands of a national elite sliding gradually               This thrust was promoted all the more for the
     into capital flight and corruption. The debt              fact that it satisfies the need to earn the foreign
     crisis which set in during the early 1980s                currency required for the reimbursement of the
     unquestionably      constituted   a brutal                debts accumulated over previous years. The point
     manifestation of this, with long-term                     is that the decade or so of hikes in the prices of
     consequences;                                             raw materials following the OPEC crisis in 1973
                                                               culminated in the famous spiral of excessive debt
     industrialization focused exclusively on                  for many under-developed countries. Their
     satisfying the needs of the internal market,              economic and financial bankruptcy led many of
     which was supposed to represent the way to                them to undergo the adjustment programmes
     autonomous development, has proved to be                  advocated by the IMF.
     inadequate and inappropriate to serve the
     national dynamic of escaping from under-                  In parallel, in the North, stagflation dominates.
     development.                                              This combination of inflation and low economic
                                                               growth has resulted in rigour and austerity
                                                               policies from which we have still not really
4.2. … to international trade as                               escaped, and which mirror a gradual questioning
                                                               of the post-war social pact and the search for
a tool for economic take-off                                   new economic and social balances. The policies
In the early 1980s, two events changed the                     of openness to competitiveness which have
economic     and   political prospects  of                     resulted, in a political context marked by the
development:                                                   collapse of the Berlin Wall, continued into a
                                                               phase of deregulation and liberalization in
     the emergence of the path of development                  economic, social and financial terms, of which
     by extroversion, in other words by the                    the effects are still being felt today, finishing up
     expansion of industrial exports, the path                 with the current phase of globalization.
     followed by South Korea in particular;
     the industrial and financial crisis sweeping
     the developed countries, which put paid to
     the period of economic growth which had


                                                                    the setting up of the first global oligopolies
4.3. The        complementarity                                     of the 21st century.
                                                               If China has done no more than to replicate at its
between international trade and                                own level the positive experience of the Asian
direct foreign investment as a                                 dragon economies, namely the promotion of
                                                               exports coupled with a political determination to
development route                                              boost the industrial sectors through active
Aside from its financial motor, which is                       management of technology transfers, it would be
paramount, the globalization process has its                   wrong to reduce the strategy behind China’s
origins in the 1980s and 1990s in the process of               development simply to this one dimension.
privatization marking the strategic starting point             Like its Asian predecessors, notably South Korea
for the transnationalization of the national                   and Taiwan, China’s economic development
economies.                                                     strategy rests upon the famous 6 Es:
For a range of reasons, although financial or                       economic interventionism by the State,
budgetary balancing ones played a role in every                     which is authoritarian in social terms;
case, the overwhelming majority of the States, in
both North and South, East and West, are                            encouraging consumers to be frugal and
gradually giving up their industrial and                            save;
commercial assets. This trend, which is                             effective education essentially funded by
continuing today, has been mirrored, amplified                      households;
and multiplied as a result of the surge in direct                   entrepreneurs pampered by the regime, to
foreign investments in 1990s. Since 1995-1996,                      encourage them to grow wealthy;
direct foreign investments have reached some
400 billion dollars per year, topping 1411 billion                  exports tailored to the flexibility of world
dollars in 2000 and not falling below 600 billion                   demand ;
dollars per year ever since. In tandem with the                    exploitation of labour under conditions
creation of the WTO on 1 January 1995, world                       failing to respect human rights at least in the
economic growth is now pegged not only to the                      initial phase of development.
growth in world trade, but also to the growth of               We can add recourse to a strategy of capital
transnational investment.                                      accumulation on the basis of pragmatic and
At the international level, two structural                     dynamic industrial policies associated with
consequences for the future are resulting:                     measured integration on to the international
     the bursting on to the scene of the People’s
                                                               The Chinese strategy is thus as far from the
     Republic of China, which, since that time,
                                                               priority given to the internal market as it is from
     has been gradually angling its policy towards
                                                               the orthodox reform programmes known as the
     carving itself a place in the global economy,
                                                               ‘Washington Consensus’.
     culminating in its admission to the WTO in
     2001, and which has subsequently                          Yet the bulk of China’s industrial dynamism has
     confirmed all that was hoped – or feared –                its own sources which do not boil down just to
     from such a dramatic event;                               foreign investments in the free areas. The
     the growth in foreign investments, which, in              transformation of peasants into workers actually
     the framework of this new paradigm, are                   leads to an extension of the country’s internal
     being sought as the tools necessary for the               market, fuelled by the monetary productivity
     construction of a technological base geared               increases deriving from the shift for many
     towards exports. It is the proliferation of               migrants from the interior from the subsistence
     free export areas and the increase in                     economy to being wage-earners.
     influence, the size of the multinationals and


4.4. The emergence of China                                            In parallel, China has made significant progress
                                                                       up the rankings of importers of goods, going
into international trade: towards                                      from 2.8% to 5.3% of the global total.
a new global economic order                                            It is important to stress the exceptional nature of
                                                                       China’s performance, which aside from its unique
Since joining the WTO, China has pressed ahead
                                                                       historical character because of its sheer speed, is,
with massive regulatory and legislative                                compared to the other emerging countries,
adaptations in order to comply with its                                appreciably more dynamic (see table below).
commitments. It is still in a transitional phase and
faces frequent criticisms, in particular for its                       The point is that throughout the economic
failure to respect a certain number of labour                          period beginning with the advent of capitalism in
standards and on intellectual property issues, but                     the 19th century, today’s developed countries
China has still benefited handsomely from its                          have always concentrated the bulk of global trade
insertion into the global market for goods and                         and global investments. Located in three major
services.                                                              areas – the United States, Japan and Western
                                                                       Europe, the famous trio – all the developed
China has gone from 3.5% of the global trade in                        countries concentrate both the bulk of the
manufactured products in value terms in 1995 to
                                                                       production, the majority of trade and both the
10.3% ten years later, occupying the number two
                                                                       origin and the destination of the major part of
spot just behind Germany. Since then, in light of
                                                                       the capital invested. The dramatic arrival on the
the data available, there is no doubt that this                        scene of China, and consequently the developing
country has become the world’s biggest exporter                        countries, is bringing about a sea change by
of goods. The commercial power of India, for its
                                                                       creating the so-called ‘emerging’ countries as
part, lies in services, which represented 2% of
                                                                       opposed to the least developed countries, which
global trade in 2005 compared to under 1% in
                                                                       substantially remain in a marginal economic and
1995.                                                                  financial situation.

                                 Share of global trade in manufactured products (in %)

                           Exports                                                      Imports
                          1995                           2005                          1995                        2005
 Germany                  11.8   Germany                 11.6        United States      15    United States        16.2
 United States            11.8   China                   10.3        Germany            9.6   Germany               7.8
 Japan                    10.9   United States            9.1        France             5.9   China                 5.3
 France                    6.3   Japan                    7.5        Japan              5.5   France                5.2
 Italy                     5.4   France                   5.2        United Kingdom     5.5   United Kingdom         5
 United Kingdom            5.2   Italy                    4.5        Italy              3.9   Japan                 4.2
 Netherlands               3.6   United Kingdom           4.1        Canada             3.6   Italy                 3.7
 Canada                    3.6   South Korea              3.6        Netherlands        3.6   Canada                3.5
 China                     3.5   Netherlands              3.5        China              2.8   Netherlands           3.2
 South Korea                3    Canada                   3.2        South Korea        2.3   Spain                  3
 Spain                      2    Spain                    2.2        Spain              2.3   South Korea           2.2
 Mexico                    1.6   Mexico                   2.2        Mexico             1.3   Mexico                 2
 Russia                    0.9   Brazil                   1.1        Australia          1.3   Russia                1.4
 Brazil                    0.8   Russia                   0.9        Russia             1.1   Australia             1.3
 Australia                 0.6   India                    0.8        Brazil              1    India                 0.8
 India                     0.5   Australia                0.5        India              0.5   Brazil                0.8
Source: CEPII July 2007


‘There is no doubt that the pace of development in the
emerging countries may contribute towards an acceleration                    The textile/clothing case
in the structural changes in many countries, whether they                    After years of tariff and non-tariff protection, the
be developing countries or developed countries. For the                      standard of free trade has applied to the
latter, the challenge posed by Japan in the 1960s or by the                  textile/clothing sector at the global level. The
little tigers in the 1980s is replaced by the challenge from                 WTO, true to its free-trade philosophy, expects
China or from India, but on a completely different scale.                    this to deliver ‘better efficiency and an increase in
As before, certain sectors or certain categories of low-                     well-being’. The resulting shock in the spring of
skilled workers are under threat from low-wage foreign                       2005 was immediate: in the developed countries,
competitors using ultra-modern machinery’60. This                            the United States and the European Union,
excerpt from the UNCTAD report needs to be                                   imports of textile and clothing products from
interpreted in a forward-looking way, in the sense                           China shot up, so much so that temporary
that while, less than ten years after being                                  measures had to be taken on both sides of the
admitted to the WTO, China (followed by India)                               Atlantic. Major market shares were captured by
has already overthrown the industrial and                                    China, notably to the detriment of other
commercial order that had held sway for over 50                              developing countries, making the country into
years, the process is very far from over.                                    the number one supplier of textiles/clothing to
The process being pursued by China is also                                   the developed countries, with a market share
measurable through the strategy of domination                                standing between 35% in Europe and 81% in
displayed in certain sectors regarded as strategic,                          Japan61.
such as shipbuilding and car manufacturing,                                  China is proving to be an unbeatable competitor
fuelled upstream by a steel industry whose                                   in a highly labour-intensive sector. The point is
growth has thrown the sector at the global level                             that it enjoys labour costs as little as one tenth of
into disarray since 2004. Public and private                                 those in Europe, while the productivity gap is
Chinese companies have constructed almost                                    being reduced, including in the proportion of
400 million tonnes of steel production capacity,                             skilled labour, and a strong transport
which is the equivalent of two European steel                                infrastructure and logistics.
industries in less than ten years.
                                                                             In a highly labour-intensive sector, the question
One of the major consequences of this booming                                of the application of labour rights becomes
industrial and commercial development has been                               crucial, particularly when textiles/clothing is
the appearance of major imbalances in trade with                             among the activities where levels of skills among
the United States and Europe: commercial                                     the labour force are relatively low, compared to
deficits vis-à-vis China in 2007 stood at 160                                other sectors. This is one reason why this sector,
billion euro for the European Union and 256                                  together with food processing, is traditionally one
billion dollars for the United States, and at                                of the first steps in a country’s industrialization.
present, we cannot see how anything can stop
these figures plunging even deeper – quite the
reverse, in fact.

60 Mondialisation et développement: perspectives et enjeux, report by        61 Benoit Boussemart, Alain Roncin, ‘La mondialisation

the UNCTAD Secretary General at the 12th session of the                      contre la concurrence dans le textile et l’habillement’, Revue de
UNCTAD, Geneva, 2007.                                                        l’OFCE, n° 103, 2007.


Structure of Chinese exports per sector, in 2005
                                                                5. The             current
                                                                phase: the need for
                                                                refocusing      on     the
                                                                inter na l mar ke ts

                                                                5.1. The WTO, guaranteeing the
                                                                opening up of the markets in the
The Chinese government is deploying a
                                                                developed countries
development        strategy    which     involves               Putting the creation of the WTO, completed by
supplementary phases of industrialization                       the 28 agreements emerging from the Uruguay
towards ever more sophisticated technologies,                   Round, following the GATT, back into the
and has plenty of money to fund its ambitions.                  context of world political and economic history,
Yet this pace of transferring processing activities             illustrates that this development first made it
from Europe and the United States towards Asia                  possible to envisage the integration of the most
in general and China in particular is not                       populous countries into the world economy, via
sustainable in the medium term, for reasons to do               their participation in global trade. The point is
with both geopolitics and the balances of                       that as well as the biggest, China, with its 1.3
commercial forces.                                              billion inhabitants, the trajectory of India, with
All these factors are issues in the current phase               over one billion, is uppermost in everyone’s
which, after establishing China as the world’s                  mind.
workshop, must lay the foundations for a new                    Aside from demographics, two other phenomena
world economic order. Would we be a long way                    caused by the bursting on to the scene of the two
from labour rights? Not at all if we consider that              Asian giants need to be taken into account. The
they can be a tool for the refocusing of Chinese                first lies in the creation in Asia of a regional
efforts towards its hinterland, a strategic                     economy       in    which       transactions   and
orientation both for its stability and for the                  complementarities with the industrial growth of
controlled evolution of globalization.                          China are developing every day, meaning that
                                                                account has to be taken of South-South trade as a
                                                                growing part of international commerce. The
                                                                second lies in realizing the acceleration of
                                                                transnational investments from China, India,
                                                                Brazil and so on; these are often in search of raw
                                                                materials but also outlets in North and South
                                                                alike, in Europe as well as in Africa.
                                                                This economic restructuring in the South is a
                                                                major development for the global economy, and
                                                                in parallel with financiarisation, represents one of
                                                                its original historic features of the early 21st
                                                                Is this a process of democratisation of the global
                                                                economy? Given the nature of China’s political
                                                                regime, the expression is inappropriate, but the


globalization which we are witnessing will                      liberalization of trade in a world where it is
continue and increase only if access to the                     accepted that multinationals have profoundly
markets in the developed countries remains a                    changed the landscape of world trade and have
reality. In that context, the WTO looks like a                  made economists rethink the theories of
guarantee of access to the markets in the                       international trade. Taking into account the
developed countries for the exporting countries                 existence of imperfect competition, we need to
which are members of the organization.                          point up the competitive advantages deriving
                                                                from the current phase of globalization, such as:
Since the launch of the Doha Round, we have
been seeing a shift in the situation: in contrast to                 economies of scale, which mean that a
the previous period of multilateral negotiation of                   single productive base can feed bigger
trade liberalization, the developed countries are                    markets, with increased returns;
no longer the only ones advocating increased                         economies of size, which mean that it is
liberalization. They have now been joined by the                     possible to spread fixed costs such as
emerging countries, notably in terms of                              marketing, R&D and administrative costs to
agriculture.                                                         a certain extent over a bigger production;
                                                                      the variety effect, whereby consumers can
5.2. Free                 trade                 and                   be offered a wider range of qualities and
                                                                This means increases in competitiveness which
The WTO is implementing an economic logic                       take the form of the downgrading of the least
which favours national supply and exports. Every                effective companies, but also those which only
country is called upon to drop its customs                      suffer from being too small.
barriers in exchange for reciprocity which will                 Accordingly, in addition to competition between
enable it to obtain larger and more diversified                 countries with differentiated production factors,
export outlets. The liberalization of trade is thus             we also have a company dimension involving
supposed to create opportunities for all countries.             international competition, which profoundly
The other side of the coin of the expansion of                  changes the international division of labour. This
exports is the parallel growth in imports, in line              approach delivers a better understanding of why
with the theory of comparative advantages,                      the setting up of multinationals from the
according to which every country undertakes a                   emerging countries is strategic in the current and
specialization in keeping with what it has by way               future balances of world economic forces. This
of production factors on the one hand and                       likewise implies the transnationalization of a
competitive advantages on the other.                            company as a factor in competitiveness in the
However, this initial economic approach needs to                current global competition conditions.
be tempered by the impact of the method on the
result of the negotiations, multilateralism, which
is not the same as free trade. The point is that
multilateralism implies that the position of a State
in the course of the negotiations is tied not solely
to its country’s comparative advantages, but also,
and above all, to other determining factors of a
geopolitical nature, membership of an
international coalition or simply the influence of
certain pressure groups which are more powerful
than others.
This trend means going beyond the simple
comparative advantage as the result of the


5.3. The         WTO:       from                                to focus on questions of trade and its
                                                                international liberalization. What has been
liberalization to the issuing of                                dubbed the ‘South’s opposition’ to the so-called
standards                                                       ‘Singapore questions’ has run up headlong against
                                                                what the States in the developing countries and
Historically, the WTO came out of the GATT.                     the LDCs interpret as interference in their public
However, they are separated by historical and                   policies. In that sense, the objective is no longer
conceptual differences. First, the WTO is born in               the opening of the markets, but access to the
an environment where virtually all exchanges of                 markets in the South, which in the majority of
goods are regulated in a multilateral framework                 cases would require these countries to set in place
with customs duties already slashed. Then the                   administrations which do not exist to conduct
WTO expands its competences to other areas by                   these public policies, notably in the LDCs.
means of the agreement on services or the                       The reaction from the developing countries and
agreement on intellectual property rights (TRIPS,
                                                                the LDCs was on several levels:
for example).
                                                                      the opening up requested goes beyond the
This expansion already places the WTO at the
                                                                      question of customs barriers and speaks to
heart of global governance. However, this is not
                                                                      questions of national sovereignty with
yet enough for the developed countries, which
                                                                      regard to the control of companies’
want to enlarge it to other topics stemming from
                                                                      management methods, for which the
the harmonization of national standards and
                                                                      instruments would be imposed from
regulations in order to achieve an integrated
global market and not simply the removal of
customs barriers on such diversified subjects as                      the skill and seniority of the policies
competition, investments or public contracts.                         conducted in these areas by the
                                                                      industrialized countries afford them an
Yet while everyone understands the exchange                           undeniable advantage vis-à-vis their
between two removals of customs barriers, it                          effective management by the competent
becomes harder to exchange one dropping of                            administrations;
customs duties against a standard, particularly
                                                                     the harmonization approach is called into
where it is a matter of sectors where the
                                                                     question when it becomes a matter of a
commercial dimension is not paramount, if not
                                                                     broad diversity of situations and subjects
inappropriate, as in the case of health, the
                                                                     relating to the intimate operation of
environment, culture or migrations, to mention
but a few examples. The demonstration given by
the multilateral body on the classic example of                 The criticism thus relates to a form of copycat
drugs since the Doha meeting is a perfect                       behaviour which refers to the dominant Western
illustration of the limits encountered by the                   order being demanded in the organization of
institution in getting beyond the current                       companies. Labour rights do not objectively form
stalemate …                                                     part of this.

On the one hand, the developed countries want                                  The example of South Korea
to get these new themes brought into the                        Among the eight fundamental conventions, the Republic of
negotiations, such as international trade and                   Korea, like China, has not ratified the conventions relating to
foreign investments, trade and competition                      trade union freedom and collective bargaining, or those relating
                                                                to forced labour. This shows the State posture described above
policy, the transparency of public contracts or the             on the subject. However, economic development in the Republic
facilitation of exchanges from the regulatory                   of Korea has translated, in the social and economic development
point of view; on the other, the developing                     fields, into the closing of wage gaps and greater respect for
                                                                labour rights, notably as a result of the trade union struggles in
countries and the least developed countries are                 the 1980s and 1990s. The rise in the populations’ purchasing
taking a stand on the contrary to get the                       power, coupled with other factors, has allowed the country to
international commercial negotiations to continue               develop, which culminated 10 years ago in its admission as a
                                                                member of the OECD.


                                                                    The international community might do this at the
6. The international                                                multilateral level, but a global consensus is far
framework                                                           from having been secured on this point. In this
                                                                    way the States can encourage or even promote
agreements                                                          the setting up and monitoring of company
                                                                    systems which at least ensure respect for labour
                                                                    rights in their activities.
As Professor John Ruggie, special representative                    As the Ruggie report recalls, in § 16, the worst
of the United Nations Secretary General, puts it                    cases of violations of human rights relating to the
in his report to the Human Rights Council of the                    activities of businesses often occur where
United Nations, it is part of the responsibility of                 governance is least sound, in particular in low-
the States to protect human rights. Nevertheless,                   income countries, emerging countries, countries
the obligation to respect these rights is                           involved in conflicts or those where the
incumbent upon businesses, together with all the                    implementation of the laws is weak and where
components of global civil society. So given that                   corruption is rife. So company systems which
businesses are the players in international trade, it               might at least go some way towards mitigating
is relevant that the States concern themselves                      the consequences of potential failings of
with how they organize themselves to ensure                         territorial governance on respect for human
effective respect for human rights in their own                     rights by the economic players deserve to be
activities, and core labour rights in particular.                   given consideration by the States who are
                                                                    involved in the development of commercial free
States, in their duty to protect human rights, even
have to intervene with businesses located on their
territory if they find that manifest violations of                  Abuses with regard to labour rights recorded in
rights are resulting from their activities. Such                    particular in the free areas intended for exports
interventions need to be implemented to ensure                      must encourage States to value the efforts made
the application of the remedies appropriate to the                  by businesses committing themselves and
problems recorded.                                                  dedicating effective resources to respect for core
                                                                    labour rights in the ‘non-right’ areas. Today, the
In addition, businesses engaged in corporate
                                                                    most advanced company systems in this
social responsibility (CSR) processes need to take
                                                                    connection are the international framework
account of the impacts of their activities on
                                                                    agreements (IFAs).
respect for rights beyond their strict legal
responsibility: they strive to improve respect for
human rights in an environment which goes
beyond their perimeter as an employer. This
perimeter of social responsibility is commonly
referred to as their ‘sphere of influence’. This
sphere contains at least the subsidiaries where the
business holds a share in the power (subsidiaries
and minority capital holdings), its main suppliers
and subcontractors, regardless of their
geographical location.
In their policy for the implementation of human
rights, States can require businesses to notify                     Regulations (NRE, Article 116, 2001) obliges companies
them regarding respect for core rights in their                     quoted on the stock exchange in France to publish
                                                                    information on the social and environmental impacts of their
organization, or to report to them on that issue62.                 activities in their annual reports, and the Swedish law of 2007
                                                                    obliges Swedish companies held by the State to publish a
                                                                    sustainable development report as from 2009, according to
62 Two examples of the spread of such processes have given          the guidelines of the Global Reporting Initiative, to be certified
rise to national legal texts: the French law on New Economic        by a third party.


                                                               6.2. A tool for the appropriation
6.1. A company tool to assert                                  of labour rights by the players in
rights in ‘non-right’ areas                                    civil society
International    framework      agreements   are
                                                               The members of civil society (company
agreements signed between the management of
                                                               managements, employee trade unions, NGOs)
an international company and a global federation
                                                               also see IFAs as having the advantage of the
of trade unions, joined increasingly by European
                                                               establishment, by the players forming the
trade union federations and national trade
                                                               structure of the local economies, of precursor
                                                               systems to disseminate standards for employment
By far the majority of these agreements relate at              conditions where the most elementary rights are
least to respect for core labour rights in the                 regularly flouted. The negotiation and
activities controlled by the company around the                implementation of the IFAs may accompany
world. These agreements often specify an                       spirals of progress in the areas of economic
application perimeter which extends beyond                     emergence or recent industrialization.
employment conditions for the company’s own
                                                               In addition, not only do IFAs pave the way for
employees and sometimes explicitly covers the
                                                               transnational corporate negotiations at global
employees of subcontractors. This recognition by
                                                               level, but certain trade union organizations see
the company by means of an agreement with the
                                                               them as mechanisms acting as a precursor to the
trade union movement of an extended
                                                               establishment     of    international  collective
responsibility beyond its legal perimeter often
                                                               agreements. So the existence of an IFA gives
results in its being termed a CSR agreement.
                                                               trade unionists a way of participating in the
By the end of 2007, sixty IFAs had been signed,                control of respect for the commitments entered
including 57 by businesses with their                          into by a company or a group of companies
international headquarters in Europe. These tools              bound by that agreement.
in some sense represent a way of disseminating
                                                               The involvement of trade unionists in the
the European social model. The major advantage
                                                               monitoring of an IFA is likely to form an
recognised by the ILO in this contractual
                                                               excellent apprenticeship for their taking account
corporate tool is that it makes it possible to lay
                                                               of human rights issues in international trade, and
down a reference regarding core rights, relying
                                                               this obviously helps towards their awareness of
specifically on the texts of the ILO conventions,
                                                               the global issues at stake in trade union
in industrial sites where such rights would be
poorly protected by the local public authorities
and possibly flouted by local company                          IFAs similarly open up opportunities for the
managements.                                                   building of fresh alliances designed to ensure
                                                               respect for rights and improving corporate
The IFAs are not supposed to replace legislation
                                                               governance: inter-union alliances, union-NGO
– in particular where the latter is more
                                                               alliances, multipartite alliances for the respect of
advantageous for workers – but they do perhaps
                                                               labour rights, and even public-private alliances.
serve to mitigate a local failing with regard to
respect for international law. This makes the
dynamic of the IFAs interesting, for it gives
application force to the ILO conventions which
they contain, even in States which have not
ratified them.


                                                                ‘good governance’ markers for them. The
6.3. The limits of the IFA as a                                 promotion of virtuous standards with regard to
                                                                the management of sectors in international trade
social regulation system                                        in social terms is actually a complementary
                                                                method which might help in the development of
This tool is currently being tested by a tiny                   a set-up taking greater and more systematic
minority of the 70,000 transnational businesses                 account of respect for labour rights. This
existing today. The knock-on effect, or the                     approach rests on the evolution of practices by
potential lever effect, is still woefully inadequate            the market players through gradual copying by
to influence social policy in the countries where               most of the players of the practices formalized
governance is sub-standard.                                     vis-à-vis the exemplary players. It is commonly
At present, the bulk of the positive impacts                    termed regulation by ‘soft law’.
recorded for the IFAs is the denunciation of
specific problems and their resolution on an ad                 Some ISO definitions
hoc basis. IFAs have not yet given rise to regional             Standards are ‘documented agreements containing
transpositions, for a specific sector of industry or            technical specifications or other precise criteria for use
across an entire industry. Moreover, self-                      coherently as rules, directives or definitions, so as to ensure
regulation today relies essentially on the                      that materials, products, processes and services are fit for
voluntarism and the resources of the signatory                  purpose’. Social standards are procedural
players. Yet the resources being devoted to IFAs                standards, for which the criteria do not have an
in order to make them operate more broadly still                influence on the product characteristics.
fall well short compared to the ambitions
declared.                                                       Certification is ‘a procedure by means of which a third
                                                                party gives a written assurance that a product, process or
Finally, if social regulation is entrusted on a large           service complies with certain standards’.
scale to players whose main function is a
commercial activity, then this raises a deeper                  A label or symbol may accompany a product to
political question: to what extent must the                     indicate that its compliance with the standards
economic players mitigate the public governance                 has been verified.
                                                                The trade union movement is actually used to
                                                                such a pragmatic approach, relying on the
                                                                evolution of practices on the ground following a
7. S o c i a l l a b e l s a n d                                consensus established between players (albeit
                                                                sometimes at the cost of difficult struggles) and
standards                                                       perhaps leading to the extension, within a given
                                                                economic sector, of the virtuous practices
                                                                obtained in some businesses. Some players think
                                                                that if CSR undertakings are made coherent
7.1. Market     tools    serving                                across a sector, this might mean the
                                                                establishment of sorts of international collective
improved respect for core labour                                agreements. In addition, for the employers’
rights                                                          representatives, collective agreements have the
                                                                advantage of reducing distortions in competition
Faced with the failings of the United Nations                   within a given sector of activity.
system in terms of ensuring universal respect for
core labour rights, and the recorded lack of a                  In that case, the explicit demand for the
truly binding mechanism, another driver of                      guarantee of better respect for rights would come
progress can be promoted as a complement – or                   not from the workers concerned themselves, but
ahead – with a view to influencing the practices                from the economic players downstream of the
of the economic players and laying down some                    sectors, i.e. the citizens as consumers


(movements for responsible consumption for                      is that labels must not be more restrictive than is
B2C – Business to Consumers transactions) and                   necessary to achieve their objective.
client businesses (socially responsible purchasing
for B2B – Business to Business transactions). If this           No case law exists on the necessity test, but it
demand were to be more readily understandable                   would seem that the unilateral determination of
and respected by the economic players upstream                  legitimate objectives is accepted as long as it is
of the commercial sectors, it would be very much                not of a protectionist nature. Labels thus benefit
in its interests to rely upon a standard. In this               from the fact that they are less restrictive on trade
way, the players respecting it can make the fact                than traditional commercial sanctions. However,
known and perhaps reveal a distinctive                          the setting up of such labels is not preceded by
advantage. Moreover, if respect for this standard               any consultation with the exporting countries:
can be certified, the players then have the                     they are unilateral measures.
opportunity to present it as proof that they are                Non-binding public labels are the protective
responding positively to their client’s demands.                measures most readily acceptable, but Europe
If, in addition, a label actually administers the               does need to take over and demonstrate a
standard, the player can exhibit this                           genuine political will in order to establish such a
distinguishing evidence or labelling, even vis-à-vis            social label. Belgium has already set an example
clients not making that specific demand.                        (see infra).
The standards giving rise to certification or
labelling are supported by their own specific
verification system.
                                                                7.3. The promotion of standards
                                                                and    labels in    the   WTO
7.2. Social           labels,        the       legal            negotiations
route                                                           Within the WTO, the representatives of the
                                                                States committed to the ‘soft law’ approach could
The measures which, in practice, have the best                  set up certain preferential conditions to favour
chances of being ruled legal vis-à-vis WTO law                  trade between economic players falling within
are the social labels. However, they have to be                 sectors respecting core labour rights.
aligned on the extraterritorial PPM, because they
apply different treatment to imported goods or                  One way would be to apply more favourable
services depending on the conditions under                      commercial treatment (tariff advantage) to
which they have been produced in their country                  products and services delivering proof of
of origin. Despite everything, the limits can more              effective respect for core labour rights in their
easily be exceeded in the context of a label than               design, their production and/or their distribution.
in the context of commercial sanctions. Labelling               Those States could use a standard for this
is often not binding, and therefore more flexible.              purpose making explicit reference to the eight
                                                                fundamental ILO conventions. Effective respect
In addition, according to the agreement on                      for the standard, or the label used, would depend
technical barriers to trade (TBT), the technical                upon the reliability of the system to control the
rules and standards likewise include ‘packaging,                standard or the label to which reference would be
labelling and marking requirements’. Accordingly, the           made.
TBT agreement covers all labels regardless of the
type of information they contain. The point is                  It should be noted that the report by the GATT
that Article 2-9 of the agreement places an                     dispute settlement panel on the Tuna/dolphins
obligation upon members to notify their labelling               case63 (1991) established that labelling on the
requirements wherever they do not derive from                   basis of unconnected PPM (i.e. procedures and
an international standard. Yet this obligation
makes no reference to the type of information
that the label is to contain. The only requirement
                                                                63Products containing tuna bearing a label stating that the
                                                                tuna came from a dolphin-friendly fishery.


methods of production not identifiable directly                 That being so, we can predict that the labels
on the product) is authorised by the GATT                       containing social criteria which would stand the
provided that the labelling is voluntary (in other              best chance of being welcomed by the
words, not compulsory) and consequently does                    international community present in the WTO
not restrict trade. The point is that the advantage             would be tools covering information relating to
of using the label results only from consumer                   the entire economic sector concerned. The point
choice. This report likewise explains that the                  is that the so-called product ‘lifecycle’ approach is
criteria for certification and labelling must be                judged these days to be the most relevant in
applied in a non-discriminatory way to all                      evaluating the environmental impact of an
applicants.                                                     activity. This means that it would be beneficial
                                                                for the information on the minimum social
The toolkit of standards and labels now seems to                quality guaranteed for the production to be tied
be in wide use to promote virtuous practices in                 to the whole of an economic sector (from the
environmental terms, and this seems to be                       extraction of the raw materials to the potential
attracting particular vigilance at the WTO. We                  recycling of the products). This would imply
see that this vigilance is benevolent. It favours               tracking a continuous line through a commercial
the utilisation of standards and labels as long as              chain relating to a product brought to market,
those tools follow the guidelines laid down by the              and validating compliance with core labour rights
WTO in the matter. For example, the process                     by the economic players concerned in that chain.
standards in series ISO 14000, which are
designed to cover businesses’ environmental                     With similar approaches regarding the social
impact management systems, and even series ISO                  criteria and the environmental criteria for
14020 relating to environmental labelling, have                 traceability and validation of the respect of the
received explicit support where they have been                  standards for a product, we should come close to
discussed within the WTO. The WTO committee                     the possibility of satisfying a widespread demand
on trade and the environment even ruled in 1996                 to see the development in the short term of tools
(at the Singapore conference) on the fact that                  making it possible to identify sectors with regard
well-designed eco-labels could be effective                     to the larger issues of sustainable development.
instruments in environmental policy.
                                                                The argument around giving the players in
Given the ‘taboo’ around social criteria at the                 international trade indicative tools for the
WTO over the past decade, no such affirmation                   running of their activities in harmony with the
has been written with regard to social labels, but              ambitions of sustainable development is among
there are good reasons for thinking that the                    the reasons driving the international community
analogy of ‘well-designed social labels’ with ‘well-            to embark upon a massive consultation process
designed eco-labels’ would be entirely defensible.              with a view to framing a social responsibility
The Belgian social label actually began working                 standard.
its way into this loophole in 2002.
                                                                The draft standard ISO 26000
In addition, since the beginning of the century,
the political objectives of the States and the                  In 2004, the ISO (International Organization for
international institutions have mainly been                     Standardization) launched an international
focusing on growth construed within respect for                 process for the framing of the future standard
the enlarged concept of sustainable development                 ISO 26000 which should provide the guidelines
(involving the search for a fair balance between                for corporate responsibility. There are six major
its three pillars), rather than a pattern confined to           groups of players which are the main
environmental concerns. So we might think that                  stakeholders in the drafting of this standard:
standards or labels containing social criteria                  States, consumers’ associations, employee trade
would now be better accepted at the WTO if they                 unions, NGOs, businesses, and ‘others’
contributed to the emergence of sustainable                     (consultants, academics, experts, etc). The big
development labels.                                             audit companies are also playing a prominent role
                                                                in this work.


One of the issues is to replace the various                    adoption of management practices by the players
national standards that have been built up since               in international trade is a good indication that the
the mid-1990s, which are not always compatible                 publication of standard 26000 should form a
and are thus hard for transnational players to                 decisive step towards the universalization of the
appropriate.                                                   concept of CSR and its adoption as an element of
                                                               ‘soft law’.
The purpose of this international standard may
be summed up by the following points:                          It is important to note that the ISO is one of the
                                                               bodies explicitly recognised by the WTO as a
     to help a body to shoulder its corporate                  producer of standards (unlike the ILO) and
     responsibilities;                                         complying with its guidelines for the production
     to provide guidelines to make the social                  of standards (TBT agreement). So it is likely that
     responsibility operational, to identify and               standard ISO 26000 will be directly compatible
     engage with the stakeholders and to                       with the WTO.
     improve the credibility of the reports and
     statements regarding social responsibility;
     to highlight the results obtained and the                 7.4. The credibility of the use of
     improvements;                                             these tools on a large scale
     to promote a common terminology in the
     field of social responsibility;                           Obviously, the concepts used for the framing of
                                                               these ISO standards are solid and the
     to be coherent and not to contradict the                  international consensus on their value grows day
     existing   documents,       treaties   and                by day. However, their wholesale application by
     conventions and the other ISO standards.                  the economic players in isolation raises a raft of
This standardization work has been formally                    questions. The most knotty relates to the
approved by the UN.                                            operationality of a verification system, and thus
                                                               the guarantee of respect for the standard or the
In addition, the ISO has signed a protocol of
agreement for this work with the ILO in order to
guarantee the coherence of the future standard                 Tracking and monitoring the trends in the
with the ILO conventions. It is remarkable to                  commercial sectors
note that the ISO has thus formally recognised
the pre-eminent role of the ILO over itself for                Commercial sectors are often highly segmented.
the framing of the criteria relating to employment             Between the extraction of the raw materials and
and labour conditions.                                         the end of a product’s life or its recycling, via all
                                                               the intermediate goods and the associated
This standard, developing ‘guidelines’, will not               services (design, marketing, transport, etc), many
result in third-party certification (unlike series             businesses and production sites are involved.
9000 for quality and 14000 for environmental                   These value chains are spread across a multitude
questions). The bodies using it will be able to                of geographical areas, often encompassing the
refer to it; however, it is likely that businesses             territories of more than one State. On top of that,
using it will subsequently seek to have their                  these sectors have many ramifications and these
efforts validated in a credible way for their                  vary depending on the changes of suppliers and
clients, and that a certification market will                  service providers at every stage of the productive
develop anyway.                                                process.
Publication of the final version of the standard,              Clearly, then, it is difficult to track the entire path
which has already been repeatedly deferred, is                 followed by every product. The problem
now scheduled for the second half of 2010.                     becomes even harder when we try to establish
However, there is already a consensus on the                   the routes concerned by a given batch of identical
bare bones of the standard. The success of the                 products which were not produced at the same
previous ISO standards in ensuring large-scale


time, because many variations then have to be                   However, with these monitoring systems, even
taken into account (for example, a batch of                     when violations of core labour rights are
cotton T-shirts, some of them manufactured with                 detected, the principals who have commissioned
a batch of cotton from the United States and                    the audits do not necessarily have the ability to
others with a batch of cotton from Mali).                       force their subcontractors to implement progress
                                                                plans to bring themselves into compliance with
However, this demanding and quite challenging                   the labour standard at issue (SA 8000, for
exercise of listing the intermediate players                    example). With this type of monitoring, based
concerned should not be impossible, because it                  solely on ad hoc social audits and employers’
has been possible to conduct it under the                       systems for handling complaints, it is very
constraint of the public authorities in certain                 doubtful whether the social quality of the supply
food chains at times of risk to public health. So               chains can really be documented reliably.
commercial players sometimes voluntarily put in
place, to a certain extent, schemes for detailed                Resources for verification or certification
traceability of certain sensitive products, for
example for the sake of limiting the risks of                   Even if systems for social monitoring and
counterfeiting of such things as drugs, luxury                  traceability across these chains were developed
items, etc.                                                     and systematically applied in a reliable way, this
                                                                would still not be enough to make them
This makes tracing complex and fluid sectors into               sufficiently credible for the client downstream.
quite a challenge, but it does not seem an                      Assertions of compliance with core labour rights
insurmountable one.                                             would not provide an adequate guarantee to the
                                                                client (or the consumer at the end of the chain)
Resources for social monitoring                                 without the possibility of verification by a third
However, while the economic players can                         party.
doubtless develop methods for real-time tracing                 Such verification, which might give rise to
across sectors where their products are                         certification or labelling, should be conducted by
concerned, respect for a sectoral social standard               players with no commercial interest in the sector
would imply that they would also be in a position               and with an image of impartiality in the mind of
to describe respect for the social criteria in the              the client or the final consumer. It might be
standard at each of the stages identified in the                handled by a powerful labour inspectorate as a
chain.                                                          public system, or otherwise by a multipartite
This is a complex challenge, because describing                 body (for example including NGOs and trade
social quality is not part of the competences and               unions) in a region where labour inspectorates
concerns of the vast majority of businesses, and                might not play their role or might be unable to
only very few of them yet have indicators on                    effectively verify practices.
these subjects. Only a few hundred major                        Such systems for the verification of the social
transnational businesses, driven by the risk of                 quality of ‘product/chain’ pairs have been set up
scandal among their customers, use specialist                   on a small scale in the international sectors
services to evaluate respect for core labour rights             described as ‘fair trade’. The advantage of these
among some of their suppliers and                               systems is that they show that verification is
subcontractors. This is usually done on an ad hoc               possible, but they have been set up in commercial
basis, via social audits which give them a                      chains which tend to be very short and quite
snapshot of the social situation on a site at a                 simple.
particular time. As a complement to the ad hoc
social audits, some businesses give the workers
concerned in their activities a telephone number
that they can use in confidence to report any
instances of non-compliance with commitments
in terms of labour standards.


The role of the trade union players in the                      There is therefore a major challenge involved in
monitoring and verification mechanisms                          encouraging and helping the poor and emerging
                                                                economies in such a way that normative tools are
The rather virtuous initiatives formed by ethical               effectively used by their national players.
trade and fair trade have shown that their limits
were tied to the fact that they did not dispose of              In order for standards or labels containing labour
reliable, permanent levers to guarantee effective               criteria to be accepted and recognised at the
and consistent respect for the labour standards                 WTO as not setting up fresh barriers to
that they are supposed to be safeguarding.                      international trade, the States promoting them
                                                                will doubtless be well advised to show in parallel
Yet within businesses, there are organizations                  that they are helping the countries in the South to
which are constantly on hand, which are                         take them on board (through specific co-
concerned with respect for labour law and are                   operation programmes for the use of these tools,
not necessarily in cahoots with the management:                 for instance). These States might thus show that
the institutions which represent the staff, or the              they do not intend to promote these tools as
company trade union sections where they exist.                  instruments for disguised protectionism.
So it seems natural to rely on these organizations
and to team up with them to build reliable and                  7.5. The effectiveness of these
quasi-permanent monitoring systems.
                                                                tools will in any case remain
The federations of regional, national and                       partial
international trade union movements, which
themselves also have a role as permanent                        The ‘soft law’ tools such as standards and labels
observers of labour conditions in their home                    have the advantage of producing regulation
regions, might, for their part, get actively                    between the players adopting them. The first to
involved in verification systems or multipartite                use them tend to be players which are already
certification trials. In this way, the trade unions             firmly established on the market and trying to
would be helping to improve and give credibility                ensure that their own practices become the norm.
to the social monitoring and verification                       They thus hope to drive down the risk of finding
mechanisms with a view to more effective                        themselves sidelined by destabilizing practices
regulation by ‘soft law’.                                       brought in by new entrants.
How to accompany the poor and                                   However, the standards and labels already
emerging countries in setting up such                           acquired by the players structuring a market do
mechanisms                                                      not provide a competitive advantage for the new
                                                                entrants. Accordingly, many of them will be
The appropriation of the social labels and                      unlikely to make the extra effort to meet the
standards systems by players in the poor or                     labour standard or display the label, in particular
emerging countries is indeed a tricky question                  if the cost of compliance is substantial. In any
and one that poses another challenge.                           event, not all players will meet the standard, and
                                                                more and more of them will fall by the wayside
The mechanisms for traceability, monitoring,
                                                                the more complex the standard becomes to
verification and documentation of social
                                                                apply. The knock-on effect of this type of
information are complex; in addition, they are
                                                                standard in terms of the non-voluntary players is
not identified as a priority today by emerging
                                                                not very pronounced, since the product being
entrepreneurs, who are far more likely to be
                                                                sold delivers the same technical characteristics
driven by the economic and financial aspects of
                                                                whether or not the standard has been complied
the world of business. Respect for voluntary
                                                                with upstream.
standards containing social criteria is obviously
easier to entertain for an economic player who is               So there is a specific limit on the development of
working in a rich economy where labour is                       this type of standards through their promotion by
already socially structured.                                    means of tariff advantages delivered by the


States. The point is that customs tariffs have
already dropped markedly over recent years, and
have now reached quite low levels. There is a
question mark over whether extra tariff
advantages – necessarily at quite a low level –
would justify investing in systems of standards
and labels which are so complex and thus by
definition quite expensive to implement.


        A few facts about three certification and labelling systems referring to core labour rights
SA 800 0                                                           The B el gian so cial la bel
The SA 8000 certification system has been                          The Belgian social label came into force legally
developed by SAI (Social Accountability                            on 1 October 2003. It is a State label. This label is
International), a multipartite body made up of                     the first public labelling initiative for
businesses, trade unions and human rights                          product/chain pairs in ethical trade. The label is
NGOs. Certificate SA 8000, issued for an                           awarded by the Secretary of State for Sustainable
industrial site by an SAI-accredited body, is                      Development and Social Economics, after
supposed to guarantee respect for a reference                      consultation of the deciding advice of a
(often called ‘standard SA 8000’) on the site. This                multipartite Belgian civil society committee. It
covers core labour rights, as well as other social                 draws exclusively on respect for the eight
criteria (health and safety, lack of disciplinary                  fundamental ILO conventions across the
measures, minimum living wage) and validates                       production chain (from the extraction of the raw
the fact that a social quality management system                   materials).
exists on the site. Issuance of this certificate
relies, however, almost entirely on the fact that an               Bodies are accredited to monitor compliance
SA 8000 audit has been successfully carried out                    with these criteria.
by a certifying body. With the reality on the site                 So far, only six products and services have been
sometimes being very different from what was                       awarded this label; it thus represents a tiny share
observed on the day of the audit, the reliability of               of the Belgian market. Yet its innovative nature
this system is often disputed by trade unions.                     and its symbolic importance are substantial, for
For more details:                                 they have opened the doors for a debate on social
                                                                   labelling on concrete examples within the
FLO – Fa irtr ad e Lab ell in g Or gan iza tion                    European bodies and the WTO. After the initial
                                                                   debates, the Belgian law was in fact amended so
FLO is the grouping of 23 fair trade                               that the label did not contradict the rules of the
organizations, national labelling initiatives for                  WTO.
products from fair trade (Max Havelaar,
Transfair, Fairtrade Foundation) and craft                         The European Commission has decided to await
producer networks. The organization develops                       the appearance of other national labels of this
fair trade standards (which contain at least                       type before perhaps proceeding with the creation
respect for core labour rights, but their specific                 of a European social label.
nature is above all a guarantee of a minimum
income for the producers). Producer groups                         For more details:
receive a certificate issued by FLO-CERT
GmbH, which is responsible for the regular
inspections on the production sites. These
inspections seek not only to guarantee respect for
standards, but also to accompany the producers
in their development by respecting the concept
of fair trade.
For more details: and


P art III
The political and institutional

                                                                     apparent, all the more so as the WTO is not a
1. T h e p r o t e c t i o n o f                                     member of the UN.
core labour rights                                                   According to the Havana Charter, the existence
                                                                     of unfair working conditions creates difficulties
                                                                     in international trade. The charter referred not to
Inter-institutional coherence between the WTO                        core labour standards, but to fair standards, and
and the ILO can be secured only through the                          had set out in indent 3 of the article devoted to
promotion of a system of common founding                             fair social standards that ‘in all matters relating to
values which offer all the social exception rules a                  labour standards that may be referred to the Organization
homogeneous paradigm.                                                in accordance with the provisions of Articles 94 or 95, it
                                                                     shall consult and co-operate with the International Labour
The UN system shows the importance of these                          Organization’ . The reference to these articles
values in the international division of labour                       indicated that the protection of fair labour
between the institutions belonging to the UN                         standards was envisaged within the ITO’s dispute
structure. These values, enshrined by the United                     settlement mechanism.
Nations Charter, make it possible to introduce a
certain coherence into the division of skills                        The question of the labour standards being
between the institutions in light of their                           handled by the WTO, on the other hand, carries
specialization. For example, after the Second                        none of the reference to fair trade which drives
World War, the Havana Charter gave the ITO                           the social dimension of the planned ITO law. At
(the International Trade Organization64),                            the Singapore Conference, the WTO came back
affiliated to the UN, the prime purpose of                           to a so-called ‘sounder’ conception of what the
liberalizing trade, coupled with a no less                           protection of labour standards should be, which
important purpose of universal respect for                           according to the Singapore ministerial declaration
human rights. Subsequently, the mandate of the                       in 1996 should be a matter for the competence of
ITO was envisaged directly in relation with that                     the ILO.
of the ILO. Since the institutionalization of the
                                                                     Paradoxically, this declaration nevertheless
WTO, the dialectic linking respect for human
                                                                     opened the way for account to be taken of core
rights to the liberalization of trade is far less
                                                                     labour standards by admitting that the WTO is
                                                                     participating not in the protection of labour
                                                                     standards but in their promotion by means of a
64 The Havana Charter, signed in 1948, was quickly                   collaboration with the ILO. At present, this
abandoned, as the United States did not ratify it. So the ITO
was never set up. For its part, the WTO derives from the
                                                                     declaration looks like nothing so much as a
GATT.                                                                profession of faith which has not been converted


into a genuine commitment. In addition, it does                 terms. So the sticking point remains one of a
not explain how the WTO could co-operate with                   political nature.
the ILO in order to participate in the promotion
of core labour rights. The joint WTO-ILO study                  Institutional mechanisms for co-operation
in 2007 Employment and international trade and a                between the WTO and the ILO should be put in
second study underway into ‘informal work and                   place, along the lines of those currently in force
international trade’ are no more than the start of              between the WTO and UNCTAD (the creation
a process for the development of these relations,               of a common instrument, the international trade
albeit a tentative one.                                         centre, whose headquarters is likewise in Geneva)
                                                                or the WTO-IMF liaison committee.
Nevertheless, some players encountered in the
framework of our study are wondering whether                    A permanent liaison committee between the
thought might not be given to a return to the co-               WTO and the ILO should, along the same lines,
operative approach provided in the Havana                       be set up to look at management of the
Charter. If it is to be reproduced, the co-                     multilateral commercial scheme for social
operative approach in terms of the link between                 exceptions linked to the protection of core labour
the protection of labour standards and the                      rights.
liberalization of trade requires the existence of a             Co-operation between the WTO and the ILO is
paradigm bringing together the purposes of the                  required in particular with regard to the control
institutions now involved, in the event, the ILO                of the timeliness of the exception measures, a
and the WTO, which might be found in the                        role currently entrusted to the dispute settlement
concept of sustainable development.                             bodies, which exercise that control when they
Nowadays, only the UN concept of sustainable                    examine the need for measures taken on the basis
development defined and launched at the Rio                     of the exception scheme. Nevertheless, faced
Summit in 1992, then formalized and                             with a national practice for example which
implemented by the UN’s Commission on                           ignores the prohibition on the grimmest forms of
Sustainable Development, can offer the                          child labour, or the ban on forced labour, the
opportunity to clear a space for core labour rights             attitude of a WTO member taking an exception
in the multilateral trade system. The whole of the              measure should be able to be controlled by the
UN system, plus the Bretton Woods bodies (the                   ILO in order to check firstly whether the content
IMF and the World Bank) recognise the values of                 of the measure is timely and secondly whether it
sustainable development in its three dimensions                 is proportionate to the violation.
as common founding values, with the UN                          As to the timeliness, it should be possible to
considering that the social pillar of sustainable               verify that the State concerned by the measure
development needs to take into account the 1998                 really has violated the international obligation
ILO declaration on core labour rights and                       placed upon it by the ILO standards. It would
principles.                                                     then be necessary to establish whether the State is
The ILO likewise recognises sustainable                         bound by international conventions that it has
development in its objectives, and has included it              previously signed up to, and failing that, whether,
in its strategy and its agenda for ‘Decent work’.               by virtue of its quality as a member of the ILO,
The WTO itself has not departed from this, since                the State has actually striven to respect the
the preamble to the Marrakech treaty includes                   obligation of behaviour accompanying the four
sustainable development among the WTO’s                         fundamental social rights enumerated in the June
objectives and principles. Even though thus far,                1998 declaration.
via the DSB and the AB, the WTO has made an                     In concrete terms, any debatable practice by a
exclusively environmental interpretation of                     State which is a member of both the WTO and
sustainable development, with the creation of an                the ILO in terms of child labour or forced labour
environmental committee, the recognition of the                 must be set against the obligations entered into
social pillar in a sustainable development process              by the State within the ILO. It is thus clear that
cannot be refused in either legal or institutional


only the ILO is genuinely competent: it has not                      forum involving the ILO, the WTO, UNCTAD,
only the expertise required, but also the method,                    the World Bank and the IMF, should likewise be
thanks to the control mechanisms already set in                      given consideration. Such a forum would make it
place.                                                               possible, within an integrated sustainable
                                                                     development approach, to jointly promote
At the moment, such an integrated mechanism is                       balanced development projects, the growth of
not being envisaged by the two Geneva                                world trade and the recognition of protection for
organizations. However, if the Member States of                      core labour rights.
the WTO and the ILO, along with the trade
unions and NGOs, were to push them, it would                         Trade unionism might play an institutional role
not take much for them to find a common                              within the WTO by promoting and optimizing its
interest in doing so. The WTO would confirm its                      capacity to provide expertise and make proposals
desire to tie trade to development beyond a                          in the framework of consultative bodies similar
declarative approach, and the ILO would find a                       to the one set in place at the OECD with the
way of equipping itself with weapons whose                           OECD’s Trade Union Advisory Committee
existence is undoubtedly necessary to be more                        (TUAC).
efficiently able to urge respect for its normative
policy, in particular core labour rights.                            2. Regional        and
If the two organizations agree such co-operation
without fearing selling their souls, then each one
                                                                     bilateral  commercial
would have to have an assurance of not being                         agreements: how they
able to be short-circuited by the other, or at least
suffering competition from it. Such an assurance                     fit into international
might be imagined from an institutional point of
view, by means of a liaison committee between                        trade
the two organizations. Such a committee would
certainly favour dialogue and mutual respect
between the WTO and the ILO and the remit
they each hold. At first, the ILO would have to
                                                                     2.1. Compatibility between the
obtain the same observer status as many UN                           social provisions in the regional
                                                                     or bilateral agreements and the
FAO, WIPO, etc).
                                                                     WTO rules
Just as 2000 saw the creation of the WTO’s
environment committee, a social policy and core                      Two questions arise when it comes to the
labour rights committee should be founded.                           recognition of the social pillar of sustainable
                                                                     development by these plurilateral agreements:
The so-called ‘ Sutherland report ‘65 had already
highlighted the need to reform the WTO in a bid                           Are labour law standards compatible with
to achieve better consistency between the WTO                             the external and internal demands needing
and the UN and Bretton Woods bodies, as well                              to be satisfied by regional agreements if they
as better recognition of the players in civil society                     are to comply with the GATT?
(which include the trade union organizations) in                          International labour law should not be
the institutional running of the WTO. The                                 included in the restrictions to be eliminated
suggestion made by the G8 Labour Ministers in                             between the members of the union or the
December 2003 for the creation of a dialogue                              area, and from an external point of view, the
                                                                          introduction of labour standards within the
                                                                          area or the union should not have an impact
65 Consultative Board chaired by Peter Sutherland, The future             on trade with third States. If the standards
of the WTO, tackling the institutional challenges of the new              are applied to imports, the situation
millennium, report submitted to the WTO Director General in


      becomes more complex, because it calls for                     Why Cotonou?
      the application of national treatment.
                                                                     The Lomé Convention and its five agreements
      Can a member of an area or a union impose
                                                                     adopted between 1975 and 1990 globally ended
      upon another member restrictions on trade
                                                                     up as a failure in terms of development. The new
      which are incompatible with the GATT in
                                                                     members of the European Union and the
      order to penalize a violation of labour
                                                                     countries in the North were sceptical regarding
      standards? We know that the Understanding
                                                                     this privileged relationship, evoking a colonialism
      on Rules and Procedures governing the
                                                                     in which they had had no part.
      Settlement of Disputes prohibits the use of
      unilateral measures. However, Article XXVI                     Moreover, the preferential treatment given by the
      of the GATT does not prohibit the Member                       convention to the ACP countries did not chime
      States of an area or a union from providing                    with WTO law, as was revealed by the Bananas
      for the establishment of their own dispute                     case. In the early 1990s, Latin American
      settlement and penalty system. Yet we know                     exporters, feeling themselves to be the victims of
      that in the case of a dispute, the provisions                  unjustified discriminations on the Community
      of the Marrakech agreement prevail over all                    market, called for the commercial scheme under
      others, but can we talk of a conflict in this                  the Lomé Convention to be extended to them.
      precise instance, when the GATT                                The various panels and the AB then noted that
      constitutes Annex I to the agreement and                       the Community’s banana import system did not
      the Understanding forms Annex II?                              comply with the GATT. The point was that the
                                                                     award of tariff quotas, to the ACP countries in
                                                                     particular, ran counter to Article XIII of the
2.2. The issues in the Cotonou                                       GATT (relating to the non-discriminatory
agreement       in     terms     of                                  application of quantitative restrictions). In
                                                                     addition, obtaining rights to import bananas from
governance and the recognition                                       Latin America or other countries was dependent
of the three pillars of sustainable                                  upon the issue of licences which involved the
                                                                     purchase of bananas from the European Union
development                                                          and / or the ACP, a procedure which ran counter
                                                                     to the provisions in the GATT in terms of non-
The Cotonou commercial agreement (signed on
                                                                     discrimination (most favoured nation and
23 June 2000) is an Economic Partnership                             national treatment clause: Articles I and III).
Agreement (EPA) designed to follow on from
                                                                     However, the EU was authorized by the GATT,
the Lomé Convention. Its objective is ‘reducing and
                                                                     in 1994, to award a preferential tariff scheme to
eventually eradicating poverty consistent with the objectives
                                                                     products originating in the ACP States, as
of sustainable development and the gradual integration of
                                                                     provided under the fourth Lomé Convention,
the ACP countries into the world economy’. The
                                                                     without having to extend this preferential scheme
agreement rests upon an ‘integrated approach taking
                                                                     to similar products from any other WTO
account at the same time of the political, economic, social,
                                                                     member, up until 2000.
cultural and environmental aspects of development’
(Article 1).                                                         So what was upsetting the WTO was not the
                                                                     references to human rights (which in any case are
                                                                     quite brief) contained in these agreements, but
                                                                     the fact that the preferences granted were not
                                                                     based upon objective criteria and that developing
                                                                     countries (DCs), although in similar situations,
                                                                     were being treated differently.
                                                                     In order to comply with the recommendations of
                                                                     the DSB in the bananas case, the European
                                                                     Commission had to carry out a radical overhaul


of its policy with regard to the ACP countries. It
                                                                Methodology of the agreement from the
undertook to scrap the import licences and thus
to establish a solely tariff-based system                       point of view of labour standards: the
underpinned by the conclusion of economic                       ‘essential element’ clause
partnership agreements (EPAs) compatible with
the WTO (and notably with Article XXIV on                       The text provides that respect for human rights66
free trade areas), for which the negotiation                    (in the broad sense of the 1948 declaration) and
framework was defined by the Cotonou                            democratic principles and the State of law
commercial agreement, between the EU and the                    constitute ‘essential elements’ in the partnership.
regional sub-sets of the ACP countries. The                     Consequently, any violation of them may, after a
policy of non-reciprocity, in force until then in               consultative procedure, lead to the total or partial
the Lomé agreements, is thus excluded, except                   scrapping of the co-operation, in other words the
for the LDCs, which benefit from the same                       aid. However, suspension is intended only as a
treatment whether they are ACP States or not.                   last resort: the priority is on dialogue. Article 96
The ACP States which are not LDCs and will not                  states that consultations between the parties
sign any EPAs with the EU will probably be                      cannot last longer than 60 days. If no acceptable
covered by the generalized system of preferences                solution is found, or if consultation is refused,
(GSP).                                                          then appropriate measures will be taken by the
                                                                ACP/EU Council of Ministers.
The logic      underpinning          the    Cotonou
agreement                                                       In a particular emergency (in other words, in the
                                                                event of a serious violation of one of the essential
These founding principles were already present in               elements), appropriate measures may likewise be
the Lomé agreements: equality between the                       taken direct by the Council of Ministers. These
partners, ACP countries masters of their own                    will then simply be notified to the other party.
development, and predictability of aid. On the                  Appropriate measures are taken to mean
other hand, some new principles govern the new                  measures drawn up in accordance with the rules
relations:                                                      of general international law and proportionate to
     a more solid political basis;                              the violation.
     a partnership open to new players: civil                   The agreement falls within a pattern of
     society and the private sector. This marks                 conditionality, since complementary clauses
     the end of the strictly intergovernmental                  provide explicitly for a penalty mechanism in the
     approach;                                                  event of non-respect for human rights. The
     a new commercial set-up: the introduction                  human rights clause system thus represents a
                                                                mechanism for the indirect implementation by
     of reciprocity. The point is that by 2008, the
     European Commission and the ACP                            contracting third States of their regional or
     countries will sign up to the creation of free             universal commitments relating to the protection
     trade areas (these are the EPAs);                          of human rights. Article 50-1 refers to core
                                                                labour standards as they have been defined in the
     a new way of managing aid: allocations of                  ILO conventions.
     resources are no longer automatic. They
     become flexible and selective, depending on
     needs and performances.

                                                                66Article 9 defines the ‘essential elements’ and stipulates that
                                                                the term ‘human rights’ is to be construed as defined by
                                                                general international law, namely that the concept includes
                                                                civil and political rights as well as economic, social and
                                                                cultural rights.


A participative approach                                        The limits
Article 6 of the new agreement seeks to promote                 West African trade union organizations have
better participation by the economic and social                 deplored the fact, for instance, that ‘in contrast to
players and civil society in the process of                     the objective of development affirmed in the Cotonou
development:                                                    agreement, the negotiations of the EPAs are essentially
                                                                angled towards questions such as the liberalization of
     by      informing      them     about    the               access to markets, the liberalization of services, the setting
     implementation of the partnership and                      up of an agreement on investments, competition and public
     consulting them on the economic, social                    contracts, which on their own do not lead to
     and institutional policies and reforms which               development’67. Thus they would rather have the
     will be supported by the Community;                        ‘GSP plus’ system, which would be compatible
     by enabling them to participate in the                     with WTO law, than the EPAs.
     implementation of the programmes and
     projects;                                                  One difficulty lies in the selection of the actors.
                                                                Article 6-2 states that ‘recognition by the parties of
     by making available to them part of the                    non-governmental actors shall depend on the extent to
     financial resources allocated to the States.               which they address the needs of the population, on their
So the idea is to get civil society involved in the             specific competencies and whether they are organised and
framing of public policies.                                     managed democratically and transparently’. This article
                                                                leaves the selection process to the discretion of
Article 6 identifies the players: the private sector;           the various States, with the criteria being unclear.
economic and social partners, including trade                   There is thus a fear of an arbitrary selection
union organizations; civil society in all its forms,            procedure in States hostile to the participation of
according to national characteristics (not just                 non-State actors such as trade union
NGOs).                                                          organizations.
                                                                The participation arrangements likewise raise
Mechanisms exist which are likely to protect this               some difficulties, since Article 4 provides that the
participation. These provisions are contractual                 conditions for the participation of civil society
obligations between the ACP States and the EU,                  shall vary ‘where appropriate’. The role of the non-
and failure to respect them is liable to be                     State actors is left to the discretion of
penalized by the partnership institutions. In                   governments.
addition, a periodic evaluation of the
performances of the participating countries is                  In terms of financing, the funds should be more
scheduled. The award of extra resources will                    readily accessible to non-State actors. Article 4
depend on these performances, notably openness                  states that these actors must be provided with
to new players (an important indicator in the                   financial resources, and Article 81 imposes
assessment process).                                            transparent management procedures enabling the
                                                                decentralization of tasks and responsibilities
This provision marks a major step forward, since                towards the players on the ground. Nevertheless,
it ‘decentralizes’ the co-operation towards the                 access to funds remains subject to the agreement
players on the ground: territorial authorities, civil           of the national authorizing officer. The question
society (NGOs, associations), the private sector.               is thus how authoritarian and non-democratic
These new players intervene in the framing and                  regimes are going to agree to share these funds
in the evaluation of the results.                               with actors who are usually opposed to the
However, this is no more than a start, and                      regime in place.
everything still remains to be done depending on
the characteristics of each State.
                                                                67 Accra declaration by the West African trade union
                                                                organizations (June 2007). Speech during the negotiations of
                                                                the EPA between ECOWAS and the European Union.


Accordingly, the participation of the new actors                adopted a GSP: Australia, Bulgaria, Canada, the
is far from guaranteed, even if some experiences                European Community, the United States of
(Benin) have shown that this process might                      America, the Russian Federation, Hungary,
succeed to some extent. One thing is for sure at                Japan, Norway, New Zealand, Poland, the Slovak
any event: there is no single model, and every                  Republic, the Czech Republic, Switzerland and
country has to find the resources and                           Turkey.
competences to allow it to influence the planning
of its development strategy.                                    This system is likewise characterized by the
                                                                freedom given to the industrialized countries to
However, this agreement does have the                           choose the beneficiary countries and products
advantage of setting in place a punitive approach               concerned, which has led to some criticisms. It is
and an incentive approach.                                      under this system that the Lomé and Cotonou
                                                                agreements were concluded.

2.3. Do       the     GSP   ‘plus’                              The enabling clause is an evolving clause, in other
                                                                words one that provides for a return to the
agreements       currently  being                               normal scheme as the country develops. This
promoted by the European Union                                  system was not questioned in 1995 when the
                                                                WTO was created. In simple terms, the GSP
herald        a      future     of                              becomes less interesting as customs duties fall. In
multilateralisation?                                            addition, the GSP does not apply to agriculture,
                                                                even though the developing countries would
The generalized system of preferences is a system               benefit greatly from it.
devised by the UNCTAD which involves
granting reduced or zero duties compared to the                 The idea of ‘special differential treatment’ thus
most favoured nation rates granted by the States                has little in the way of operational content. No
to certain products from developing countries.                  reference is made to human rights in the
The least developed countries (LDCs) enjoy                      framework of the enabling clause in the GATT.
special preferential treatment for a wider range of             The system relies on considerations of a purely
products, as well as bigger reductions in tariffs.              economic order, and is not subject to any
                                                                conditionality. However, the preferential
In 1979, the parties to the GATT adopted the                    agreements granted to the developing countries
‘enabling clause’. This allows imports from the                 tend in general to be accompanied by conditions
developing countries to benefit from more                       on respect for fundamental rights. The
favourable treatment. On the one hand it                        industrialized countries concerned can conduct
authorises the industrialized countries to grant                surveys in the exporting countries and as
the developing countries generalized tariff and                 appropriate withdraw their preferences from the
non-tariff systems of preferences departing from                countries at issue.
the most favoured nation clause (provided that
such preferences are general, non-discriminatory                Finally, in Part IV of the GATT, entitled ‘Trade
and non-reciprocal), and on the other, it allows                and development’, Article 3-6 states that ‘there is,
the latter to conclude preferential co-operation                therefore, need for close and continuing collaboration
agreements among themselves.                                    between the Contracting Parties and the international
                                                                lending agencies so that they can contribute most effectively
The aim of the GSP is to favour exports from the                to alleviating the burdens these less-developed contracting
developing countries with a view to stimulating                 parties assume in the interest of their economic
their growth, reducing or eliminating customs                   development’. This provision might perhaps be used
duties for a certain number of products of                      to back up the idea that the World Bank might
relevance to the developing countries, and                      help the developing countries to pay to get their
applying non-tariff measures in as favourable a                 labour law brought into compliance with ILO
way as possible in the territory of the                         standards.
industrialized countries. Several countries have


2.4. GSP + or ‘reinforced’ GSP                                   criteria; because in order to qualify for the
                                                                 scheme, it is necessary not only to ratify the said
GSP+, a system that has existed since January                    conventions, but also to demonstrate that they
2002, is a special scheme offering extra                         are being respected in practice.
commercial preferences to vulnerable countries                   Two essential questions arise:
and those with dependent economies committed
to sustainable development and good                                   Can a State, by virtue of the GSP, grant an
governance, including fundamental human rights                        extra preference to members for their
and labour standards. It is thus a system of                          respect of the principles contained in the
‘positive’ sanctions (additional advantages are                       international conventions on labour law, a
granted to countries demonstrating their respect                      sector which is not covered by the WTO?
for the ILO conventions). Negative sanctions can                      The objective of sustainable development
likewise be adopted in the event of serious                           that the WTO has set itself is relevant here
violations (such as forced labour) going as far as                    for the determination of the compatibility of
the withdrawal of the preferences (as was the                         this system with the GATT. In addition, the
case with regard to Burma).                                           extra conditionalities relating to the
                                                                      development of the economies and the
Some (notably the trade union organizations in                        raising of standards of living, and those
the ACP countries) take the view that the                             required in order to grant extra preferences,
admission of non-LDC ACP countries to the                             are compatible with the enabling clause. The
benefits of GSP+ might constitute an alternative                      new point would then be to demonstrate
to the EPAs, or at least a way of pursuing the                        that labour rights make it possible to meet
negotiations beyond 2008 (the date by which the                       these needs;
European Commission has to comply with the
GATT) without the loss of the commercial                              How will it be possible to verify respect for
preferences.                                                          the ILO Conventions? In other words, what
                                                                      will happen if a GSP gives no indication
The eligibility criteria are as follows:                              regarding how the implementation of the
                                                                      international conventions is to be verified?
     countries must ratify and implement 27
     international conventions (the major United
     Nations and ILO conventions on human
     rights and labour rights);
     they must follow strict application and
     enabling procedures;
     they must have low or intermediate
      they must meet the criteria linked to the
      diversification of their exports and the total
      share of GSP imports from the EU.
Eligibility for the benefit of GSP+ is reviewed
every three years.
Given its objectives, this preference system is
authorised by the ‘enabling clause’ in the GATT.
As things stand, no ACP country which is not
among the LDCs is eligible for GSP+: none has
ratified the 27 international conventions and
none has demonstrated that it is implementing
these conventions and satisfying the eligibility


                                                               It lays the foundation for social development
                                                               resting on four complementary pillars, as outlined
3. Integrated      and
more          flexible
approach        taking
                                                                              Decent work
account    of     core
                                                                                      Full employment
labour rights via t he
                                                                    Labour rights                        Social protection
concept   of   decent
                                                                                        Social dialogue
                                                               This concept built up in accordance with the
Since the late 1990s, in parallel with its usual               tripartite ILO consensus seeks not only social
activity regarding labour conventions, the ILO                 equity and social inclusion, but also economic
has been developing the concept of ‘Decent                     development fitting within a process of
work’. This approach seeks to be more all-                     sustainable development. Its ambition is to be
embracing and more dynamic than its traditional                enshrined at the heart of any strategy for
approach involving promoting social progress via               economic and social progress and it even
the ratification of the conventions by the States,             provides a reference framework for economic
followed by a system of compulsory                             and social policies, one which seeks to be more
communication regarding their application. This                flexible than that of the ratification of the ILO
concept has now been precisely defined and                     conventions.
formally approved by the international                         Ways of attaining decent work need, however, to
community, within the UN.                                      be tailored to the local conditions. In that sense,
Decent work thus combines respect for                          the process of promoting decent work must
fundamental rights with a development process.                 make it possible to move beyond the obstacles
                                                               that certain States have placed in the path of the
The concept might make it easier for the various               ratification of certain ILO conventions, including
UN mechanisms to take account of the essential                 the eight ‘fundamental’ conventions.
principles detailed in the fundamental ILO
conventions (while avoiding explicitly naming                  The definition of decent work according to
those conventions). Its ambition is to be                      the ILO
applicable and applied, not only in the developed              ‘The primary goal of the ILO today is to promote opportunities for
countries, but also in the poor or emerging                    women and men to obtain decent and productive work, in conditions of
economies.                                                     freedom, equity, security and human dignity’. Juan Somavia, ILO

                                                               Decent work sums up the aspirations of people
                                                               in their working lives – their aspirations for
                                                               opportunity and income; rights, voice and
                                                               recognition; family stability and personal
                                                               development; and fairness and gender equality68.




To put it another way, the implementation by a
State of an economic and social policy that                     4. The UN’s
incorporates the concept of decent work does
not immediately require the formal ratification of
the conventions. This flexibility in the process is             development
likely to facilitate the adoption of the concept
within multilateral commercial negotiation circles.             approach as a
In addition, the path of the promotion of the                   political and
recognition of the concept of decent work by a
body such as the WTO via recognition of the                     institutional pat h for
four founding pillars (full employment, labour
rights, social protection, social dialogue) would               the recognition of
thus deliver a methodological advantage over the
explicit recognition of the eight fundamental ILO               labour rights by the
conventions (and them alone). The point is that
fundamental social rights are often considered to
                                                                W TO
form part of the set of human rights, and that set
of human rights itself must be considered as
indivisible. Some civil society players, very                   The sustainable development dimension, in the
devoted to that indivisibility of human rights,                 UN definition incorporating the three pillars, has
whose vocation is specifically to protect human                 begun to be taken into account by the WTO. It
rights (the Fédération internationale des droits de             has been incorporated a minima in the framework
l’Homme, Amnesty International, etc) have                       of the Marrakech agreement, in the preamble to
repeatedly voiced their fears that the rules of                 the setting up of the WTO in 1994: ‘Recognizing
trade take explicit account of only certain rights,             that their relations in the field of trade and economic
and that this leads to an ultimately restrictive                endeavour should be conducted with a view to raising
approach vis-à-vis human rights.                                standards of living, ensuring full employment and a large
                                                                and steadily growing volume of real income and effective
In conclusion, we have moved from a debate                      demand, and expanding the production of and trade in
about labour standards to a debate about the                    goods and services, while allowing for the optimal use of the
strategy to be followed in order to progress in                 world's resources i n a ccor dan ce with the o bjec tive
getting labour rights taken into account.                       of su stainab le d e velo p men t, 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’. It
                                                                has been included in many commercial
                                                                agreements (bilateral, regional or unilateral)
                                                                concluded or under negotiation (United States
                                                                and Latin America, EPA between the EU and the
                                                                ACP countries, FTA between the EU and South
                                                                Korea, China, India, Ukraine, in the
                                                                Mediterranean, etc). It has been the subject of
                                                                several disputes handled by the DSB and the AB
                                                                at the WTO.

                                                                Sustainability impact assessments (SIAs) are a
                                                                basic political instrument for measuring the
                                                                consequences of the liberalization of world trade
                                                                on the three pillars of sustainable development.


They have been conducted and instrumentalized                       of the commercial agreements of the European
by the European Union and by the United States                      Union and its Member States. A battery of
in the framework of plurilateral and multilateral                   indicators was set up in support of the SIAs:
commercial negotiations and represent a                             indicators from the World Bank and the UN
substantial issue in terms of consultation and                      CSD (Commission on Sustainable Development)
account of the positions and demands of the civil                   in the case of the economic pillar, indicators from
society actors, which include the trade unions                      the CSD and the ILO in the case of the social
(see below).                                                        pillar, indicators from the UNEP, the European
                                                                    Environment Agency and the CSD in the case of
                                                                    the environmental pillar. Some statistical
4.1. The major stages in the                                        harmonization has been achieved between the
development of the SIAs                                             European statistical office (Eurostat) and its UN
                                                                    counterpart, the statistical offices of the UN’s
In 1992, the declaration at the Rio Summit                          economic and social division.
approved Agenda 21 and made the concept of                          At the global level, the United States has likewise
sustainable development into a core element in                      implemented this process as from 2002, by
the framing of international policies. Chapter 29                   entering its Social Reviews and Environmental Reviews
of Agenda 21 provides for ‘strengthening the role of                into the negotiating mandate entrusted by
workers and their trade unions’ and stipulates that ‘as             Congress to the USTR (US Trade Representative)
their representatives, trade unions are vital actors in             in its bilateral and multilateral commercial
facilitating the achievement of sustainable development’,           negotiations.
and that ‘the established principles of tripartism provide a
basis for strengthened collaboration between workers and            The SIAs have been conducted and
their representatives, Governments and employers in the             instrumentalized by the European Commission
implementation of sustainable development’.                         and the United States in the framework of
                                                                    plurilateral   and     multilateral   commercial
Since 1999, when the WTO Ministerial                                negotiations, as well as in the framework of the
Conference was held in Seattle, the assessment of                   unilateral commercial conventions (GSP,
the impact of the WTO negotiations on                               GSP+ ), and represent a substantial issue in terms
sustainability carried out by the European                          of consultation and account of the positions and
Commission has been the first one to examine                        demands of the civil society actors, which include
the three pillars of sustainability.                                the trade unions.
In 2001, this political instrument assessing the
impact of external trade on sustainability fell
within a wider political commitment entered into
by Europe’s leaders at the Gothenburg Summit.
A communication from the European
Commission on SIAs (COM/2002/276)
introduced a complete framework for impact
assessments in all its areas, including trade. In the
field of commercial policy, these SIAs are
launched once the European Council has
instructed the European Commission to conduct
particular commercial negotiations, whether of a
plurilateral (bilateral or regional) or multilateral
dimension (WTO Doha round).
In March 2006, a methodological guide produced
by DG External Trade formalized the SIAs
dedicated to the negotiations and implementation


                                                                As a tool to aid decision-making in the
4.2. Objectives of the SIAs on                                  framework of European commercial policies,
                                                                external trade SIAs are implemented in
the European Union’s external                                   accordance with a methodological approach (as
trade                                                           prescribed and revised by the March 2006
                                                                methodological guide) based upon two elements:
An EU external trade SIA meets two main
objectives:                                                          economic, social and environmental
                                                                     assessments carried out by so-called
     a technical objective: to examine the                           ‘independent’                 consultants
     potential effects of commercial opening                         (PriceWaterhouseCoopers, University of
     within the EU but also the possible impacts                     Manchester, Gret, Stockholm Institute, etc),
     on third countries which are EU partners by                     applying detailed methods (analytical
     identifying the probable changes generated                      examinations and exploratory studies),
     by an agreement concerning the economic,                        assessing in depth the changes that the
     social and environmental situation;                             commercial agreement might cause to the
     a political objective: to integrate                             three sustainability pillars;
     sustainability into the process for the                          a process of consultation and dissemination,
     liberalization of trade, to transmit                             based around the principle of transparency,
     information on the potential impacts to the                      guaranteeing that other ‘useful’ information
     interested parties in the public, private and                    is collected in the framework of debates
     non-profit sectors (trade unions, NGOs,                          conducted on an informed basis with a
     MPs, etc), to propose appropriate                                broad range of interested parties: externally,
     accompanying measures likely to reinforce                        the civil society actors (including trade
     the positive impacts on sustainability                           unions), international organizations, and
     resulting from the liberalization of external                    third-country governments. Internally, DG
     trade or to reduce any major negative                            External Trade leads an external trade SIA
     impact, and finally to provide a structure for                   steering committee made up of members of
     greater transparency in the framing of                           all the competent units and DGs concerned
     commercial policies and a framework for a                        at the European Commission (DG
     dialogue between the EU’s commercial                             Development, DG Employment and Social
     policy decision-makers and the civil society                     Affairs, DG Environment, DG Relex). It is
     representatives (which include trade unions                      in that connection that DG Employment
     and NGOs).                                                       and Social Affairs is empowered to
Trade unions and NGOs have an essential role to                       participate in the process for the negotiation
play in feeding information back, and expertise                       of the EU’s commercial agreements in their
which must be taken into account in the framing                       social aspect, albeit with very few staff
of the conclusions and recommendations in the                         resources.
SIAs on external trade.                                         Trade unions and NGOs alike are formally
                                                                invited to be consulted on the SIAs on the
                                                                various commercial negotiations (including the
                                                                WTO’s Doha round) in the framework of a civil
                                                                society contact group.
                                                                The limits of trade union influence relate not
                                                                only to the fact that it is optional to take account
                                                                of the analyses, positions and proposals from the
                                                                trade union representatives in this consultative
                                                                body, but also to the cumbersome and slow
                                                                nature of the commercial negotiation process. In
                                                                fact the latter is costly in terms of availability, the


skills of the resource staff and the expertise
required for account to be taken by the                        4.3. Future challenges from the
Community and national public institutions of
relevant information and reasoned counter-                     SIAs and the negotiations, and
proposals from the trade unions. Highly                        implementation of the EU’s
structured NGOs such as Oxfam or WWF, on
the other hand, have the substantial reserves of               commercial agreements to take
expertise required to optimise their lobbying                  better account of the social pillar
                                                               in sustainability
EU external trade SIAs conducted to date have
indicated potential positive and negative effects,             Getting the results of an SIA better
although no major positive or negative effect.                 integrated into the negotiations and the
Often it is other policies (or the lack thereof)
                                                               commercial agreements
which, either alone or jointly with the
liberalization of international trade, may have                The assessments conducted in the framework of
major impacts. The SIAs do, however, confirm                   the SIAs are often complex and lengthy, with the
that commercial liberalization purely and simply               results being dictated by the speed of the
is not automatically beneficial to development,                negotiations underway. The process of
which is the central plank of the Doha                         integrating the results into the framing of the
negotiation round: it needs to be managed and                  negotiation policies should be systematically
progressive. The studies show that the effects of              applied and improved.
opening up vary depending on the level of
development in the countries and that                          The recommendations proposed by an SIA will
differentiation within the developing countries is             not always tally with the initial objectives of the
indispensable, whether the emerging countries                  commercial negotiators. The accompanying
                                                               measures proposed will sometimes require the
like it or not.
                                                               adoption of measures in areas of action other
                                                               than commercial policy, which will raise
                                                               questions of coherence and co-ordination. These
                                                               recommendations may call for action not by the
                                                               European Union but by its partners in the
                                                               negotiations. Within the EU, the actions of DGs
                                                               other than DG External Trade (Development,
                                                               Employment and Social Affairs, Environment,
                                                               Relex) and the corresponding national ministries
                                                               in the Member States may be required.

                                                               Improving the quality of the external trade
                                                               The more detailed and specific the results, the
                                                               more they will be able to be incorporated
                                                               unambiguously into commercial policy. There
                                                               will be a number of hurdles to be overcome:
                                                                    the collection, reliability and availability of
                                                                    the data;
                                                                    R&D concerning the instruments and
                                                                    models for the assessment of commercial
                                                                    policy (notably the social dimension of the


     improved assessment         of       the   regional              improving the methodology and making it
     impacts within the EU;                                           more participative. Trade unions and NGOs
     the need for a multidisciplinary approach: to                    would participate in this body.
     gain a better understanding of how the                           Improving the dissemination of the
     commercial agreements and the other                              information, its collection and the
     policies (such as employment and social                          processing of contributions from the civil
     affairs, development, environment, etc) may                      society actors (and thus the trade unions) as
     interact in designing and implementing                           well as the feedback mechanisms. To do
     appropriate policies.                                            this, it is important to ensure transparency
                                                                      in terms of the recognition and utilisation of
Improving the process for the consultation                            the contributions from the trade unions as
of the trade unions as civil society actors                           civil society actors and to provide for
concerning these SIAs                                                 appropriate feedback of information.
                                                                      Including the content of the questions
Within the European Commission, it would be
                                                                      raised by the civil society actors in the
helpful to improve the interaction and co-
                                                                      debates and analyses. The challenge would
operation between the closely connected areas of
                                                                      be to propose a process with a tangible
action, such as trade, employment and social
                                                                      impact on the framing of commercial
affairs, development and the environment; the
                                                                      policies. Many civil society representatives
DGs concerned at the European Commission
                                                                      criticise the European Commission for not
will need to set up a co-ordination body.
                                                                      having clearly signalled, in some cases, how
Several proposals can be cited by way of example:                     their contribution had changed the process
                                                                      for the framing of policies or political
     Involving the European Commission                                positions.
     delegations in third countries: in every
     delegation, there should be one official                    Improving the political and institutional
     familiar with external trade SIAs and acting                dialogue concerning these SIAs
     as a liaison agent with the civil society actors
     (including the trade unions in those                        Some concrete proposals can likewise be framed:
     countries affiliated to the ITUC).
                                                                      Offering a better basis for understanding
     Involving all the interested parties in the                      and reconciling different points of view in
     developing countries: capacities need to be                      arbitration between trade and the three
     reinforced so that officials and actors in civil                 sustainability pillars, to be conducted
     society (trade unions and NGOs) contribute                       around the negotiating table;
     to the process. Accurate, well-prepared
                                                                      Contributing towards reinforcing the
     reports would need to written and feedback
                                                                      political action and co-operation between
     collected and incorporated clearly and
                                                                      the European Commission and the
                                                                      international organizations (WTO, ILO, UN
     Reinforcing the resources of the EU’s civil                      CSD, UNCTAD, UNEP, FAO, WHO,
     society actors’ contact group (trade unions                      World Bank), which launch international
     and NGOs) in terms of access to                                  initiatives on sustainability and participate in
     information, the quality of the information,                     the SIAs.
     training for trade union representatives,                   At the multilateral level, these EU SIAs (as well
     expertise capacities.                                       as those of the USTR in the United States)
     Getting the international organizations and                 should be matched at the WTO level, with the
     experts involved in the process by creating                 introduction of an international advisory
     an international advisory committee                         committee or international contact group co-
     allowing for a permanent exchange of                        ordinated by the WTO Secretariat, within which
     information and ideas for the sake of                       the civil society actors (trade unions and NGOs)


would be formally consulted on these SIAs,                     Development) as a body able to ensure cohesion
dedicated not only as an aid to decision-making                and synergy between the three sustainability
during the multilateral commercial negotiations in             pillars. The UN bodies such as the ILO,
the Doha round, but also in the national Trade                 UNCTAD, the WHO, the FAO and the World
Policy Reviews.                                                Bank would be consulted by the CSD for the
                                                               drafting of the SIAs incorporated in the process
Against that background, mechanisms and                        of the negotiation and implementation of
arrangements for co-operation of the type                      multilateral commercial agreements.
existing at present between the WTO and
UNCTAD might be created between the WTO
and the UN’s CSD (Commission on Sustainable


G eneral conclusion
                                                               sustained in the medium term. Similarly, the
The issues in the globalization of                             deepening commercial deficits which are
                                                               plumbing historic lows between China and its two
labour rights                                                  top partners, the United States and the European
                                                               Union, are not sustainable over the medium to
We are witnessing the dawn of a new world order,               long term. The application of the eight
with the arrival in the industrialized world of the            fundamental ILO conventions would mean a
two most densely populated countries on the                    central way of restoring a balance, but it would
planet, and their Asian and emerging followers.                first entail being able to set the terms of the
This historic transformation is very swift and is              debate within an international body.
happening in every economic, political, cultural
and social area. This phenomenon, known as                     So it is clear that the instruments, or the
‘globalization’,   increasingly     involves    the            institutions, of global governance need to be
integration on the world market of goods and                   reformed if the new global system is to be given
services produced under conditions which do not                frameworks and rules giving it fresh legitimacy.
respect human rights. The danger of                            The trade union organizations, and in addition to
challenging the values structured around the                   them, some NGOs, represent central strategic
Universal Declaration of Human Rights, and                     players in rising to this challenge. But first of all
more particularly those applying in the exercise of            we need to explore the economic implications of
paid work, seems clear.                                        this approach.
How can we prevent core labour rights from
being downgraded and called into question when                 Calling into              question    social
inequalities in working and remuneration
conditions are on such a scale and competing on                dumping    as              a    factor    in
the global market for goods and services? Should               development
we close our borders? Obviously that is not the
right answer, after the experience of the 1930s, a             In the first place, we can state that social dumping
subject on which all analysts tend to link                     – construed as the comparative advantage deriving
protectionist reactions to the crisis to the slippery          directly from the violation of labour rights – is
slope towards the Second World War. On the                     marginal, compared to the global gap between
contrary, the integration of the emerging countries            production        costs.      Consequently,      the
into the global market for goods, services and                 competitiveness of products from emerging
capital represents a powerful instrument for                   countries does not rely on this type of advantage;
economic growth and development, as certain                    accordingly, demanding respect for fundamental
Asian countries have demonstrated.                             human rights in the production of goods and
                                                               services is in no sense a protectionist measure in
On the other hand, a problem arises when
                                                               itself: respect for labour rights is compatible
liberalization serves as the one and only remedy
                                                               with free trade.
for the ills of the developing countries, as the
Doha declaration would indicate. In addition, the              Then, actions to restore the balance to world trade
regulatory deficit at global level might, as things            might be undertaken by relying on an increase in
stand, with the multilateral negotiations in                   the purchasing power of workers in the emerging
stalemate, result in imbalances which cannot be                countries. The countries in the trio (North


America, European Union and Japan) cannot
remain the only solvent markets, and the                       The coherence of the States’
application of labour rights constitutes a powerful
lever in refocusing outlets for the productions of             external policies: a powerful
the emerging countries. Such is the logic behind               demand
the Generalized System of Preferences, or GSP+,
which opens markets to exports under conditions                With the birth of the WTO, a written law and a
which respect or improve labour rights, with the               body for the settlement of disputes were created,
effect of simultaneously boosting internal demand              giving the international community its first formal
for consumer goods.                                            operational tools for governance over the global
                                                               goods market. So the legal path is thus paramount.
According to this reading, the failure of the Doha
round lies at the door of the exhaustion of a                  In the construction of the legal argument for the
method which has shown its effectiveness in the                WTO to take account of core labour rights, a
liberalization of the trade in goods but which                 number of levels need to be considered. Firstly,
suffers from a lack of consensus concerning the                the foundations need to be consolidated by the
paths of economic development, given that                      pursuit of two objectives simultaneously: the
opening up markets is not enough. Faced with                   recognition of the fundamental place of labour
that stalemate, putting forward the idea of decent             rights in the hierarchy of international standards,
work is a first bid to move beyond that                        and the promotion of their status as jus cogens. As a
contradiction, but it is still too exposed to                  complement, via the deciding advice mechanism,
divergent interpretations which hamper its                     WTO law needs to reintegrate the international
implementation.                                                legal system and notably to call on the ILO on
                                                               questions deriving from labour rights.
It is in this context characterized by the successive
failures of the rounds of multilateral negotiations            A major step forward will then be made in the
that the players from business and the non-                    search for coherence between commercial policy
governmental organizations have taken over from                and international commitments by the States in
the States in promoting voluntary measures, such               terms of human rights. The UN concept of
as signing international framework agreements                  sustainable development built up on three pillars
within multinationals or drafting and complying                (economic, social and environmental) may then
with standards and labels on certain global                    prove to be a potent tool for establishing
markets. In both cases, respect for labour rights is           coherence between the external policies of the
referred to and forms the structure, albeit on a               States, especially when it has been integrated a
scale which still remains modest, of the relations             minima into the Marrakech agreement, in the
between producers and consumers. Accordingly,                  preamble to the constitution of the WTO.
faced with the inaction of the States, civil societies
are seizing the initiative, gradually gathering skills         This growing imperative of coherence in the
and implementing methods to tackle violations of               States’ policies represents a powerful demand on
labour rights around the world. This is what is                the part of the players who would like to rely on
known as ‘soft law’, which definitely has an impact            WTO law in the fight against violations of labour
at local level, but which cannot completely plug               rights. In fact it is a condition for making use of
the gaps in international law.                                 Article XX, which lists the exceptions to the
                                                               general WTO scheme, as in the case of prison
                                                               work, risks to health or public morals. In these
                                                               three areas, the case law studied, beyond the
                                                               realities to which it refers, shows how difficult it is
                                                               to defend exceptions to constant law, with the
                                                               exception of public morals, which seems to be the
                                                               most promising reference.


Why should Europe not set up certain rules in                  There is no doubt that every step forward counts,
terms of employment, working conditions and                    and faced with the current stalemate in the
remuneration as being essential if a production is             multilateral negotiations for similar reasons (the
to be allowed to be consumed on its territory?                 confusion between commercial openness and
                                                               development), the trade unions have opportunities
                                                               to assert their own points of view, notably in the
The routes for action in the                                   framework of the studies to assess the impact of
institutional and political areas                              trade on sustainability, which seem to have steered
                                                               clear of that pitfall.
Beyond the basic legal arguments, the trade unions
can put their case by reinforcing their presence
and their expertise in the WTO through amicus
curiae submissions, but also vis-à-vis the Member
                                                               We have moved into a new phase of
States upstream. From this point of view, there
                                                               capitalism which calls for respect for new
are many convergent paths open for action and
                                                               types of coherence by the players, be they
for asserting trade unionism and its values of
                                                               State actors or others. In order to achieve this
respect for labour rights among the non-
                                                               coherence, what the lawyers call ‘the deciding
negotiable elements of economic and political
                                                               advice’, which we could translate as the
governance in the 21st century.
                                                               response from the competent forum in the
There are precedents in the international                      face of the problem raised, is indispensable.
commercial system, such as the generalized system              Yet how are we to imagine a competent,
of preferences which, in exchange for practices                coherent response to the questions of labour
compatible with respect for the ILO conventions,               rights without the active participation of the
gives easier access to the markets in the developed            trade union organizations?
countries. This policy is, however, recent and it is
                                                               Through the implementation of sustainable
difficult at this stage to assess its effects. The
                                                               development policies, in which the European
recent negotiations for the follow-up to the
                                                               Union seeks to occupy the driving seat at
Cotonou agreement, however, show how hard it is
                                                               global level, the place of the trade union
for the ACP countries to achieve satisfactory
                                                               representatives   thus     imposes     itself
results in terms of development and thus to move
beyond simply the commercial dimension, despite
the undeniable advances in the consultation and
involvement of the civil society actors.



I nterviews
Mehdi ABBAS, senior lecturer in economics, Université Pierre-Mendès-France, Grenoble
Rémi BAZILLIER, senior lecturer in international economics, Université d’Orléans
Romain BENICCHIO, advocacy officer, Oxfam International, Geneva
Sophie BESSIS, member of the executive committee, Fédération internationale des droits de l’Homme
Monique CHEMILLIER-GENDREAU, emeritus professor of public law and political sciences, Université
Paris VII
Dan CUNNIAH, director of ACTRAV, International Labour Office
Rudi DELARUE, International Affairs unit, DG Employment, European Commission
Cleopatra DOUMBIA-HENRY, director of the International Labour Standards department, International
Labour Office
Laurence DUBIN, senior lecturer in public law, Université Paris I
Ignacio GARCIA-BERCERO, head of unit, DG Trade, European Commission
Paolo GARZOTTI, deputy head of the unit in charge of the interface with the WTO, DG Trade, European
Eric GRAVEL, principal legal expert in the Standards department, International Labour Organization
Thomas GREVEN, researcher at the German Institute of International Relations and deputy professor at
Berlin Free University
James HOWARD, economic and social policy, International Trade Union Confederation
Ditte JUUL-JORGENSEN, head of unit, Sustainable Development and SPS issues, DG Trade, European
Pascal LAMY, director general of the World Trade Organization
Marie-Pierre LANFRANCHI, professor of international public law, Université Aix-Marseille III
Eddy LEE, joint lead, joint WTO-ILO study, Commerce et emploi, 2007
David LUFF, lawyer specialising in World Trade Organization law, professor of international trade law
Gabrielle MARCEAU, consultant at the cabinet of the Director General of the World Trade Organization
Evelyne PICHENOT, joint reporter of the opinion of the European Economic and Social Committee on 9
April 2008 on the negotiations with a view to the conclusion of new trade agreements
Jean-François RAX, responsible for WTO issues in the IFI commission, Amnesty International France


Daniel RETUREAU, member of the European Economic and Social Committee, group II
Hélène RUIZ-FABRI, professor of public law, Université Paris I
Michel RAINELLI, professor of economics, Université de Nice
Ramona SAMSON, manager, Economy, Commercial Affairs and Sustainable Development, DG Trade,
European Commission
Frank SIEBERN-THOMAS, International Affairs unit, DG Employment, European Commission
Jean-Marc SIROËN, professor, Université Paris IX-Dauphine
Alexandre VISCONTINI, responsible in the IFI commission, Amnesty International France
Elin WRZONCKI, Globalization and Human Rights unit, Fédération internationale des droits de l’Homme


B ibliography
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Specific books
Universal dictionary of the English language, Oxford, 1932.
Le petit Robert de la langue française, Paris, 2006.

Articles and reports
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Abbas Mehdi, « Accès aux médicaments : cinq leçons à tirer d’une négociation aux longs cours », Le Monde, 11
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Ascencio Hervé, « L'amicus curiae devant les juridictions internationales », Revue générale de droit international public,
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Bizet Jean, OMC : sortir de l'impasse par la réforme, rapport d'information du Sénat n° 423, annexé au procès-
verbal de la séance du 27 juin 2006, p. 84, disponible sur Internet à l’adresse :
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Charnovitz Steve, « The Moral Exception in Trade Policy », Trade Law and Global Gouvernance, mai 2002,
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Chemillier-Gendreau Monique, « Pour une éthique de l’économie : le droit, un élément de frein ou de
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Chemillier-Gendreau M., « OMC, un instrument pour une mondialisation maîtrisée ? », Le Monde diplomatique,
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Commission mondiale sur la dimension sociale de la mondialisation, Une mondialisation juste, créer des opportunités
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Commission mondiale sur l’environnement et le développement, Notre avenir à tous, Québec, éditions du
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Conseil consultatif présidé par Peter Sutherland, L’avenir de l’OMC : relever les défis institutionnels du nouveau
millénaire, 2004, 101 p, disponibles sut Internet à l’adresse :
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Dubin Laurence, Noguellou Rozen, « La participation des personnes privées dans les institutions
administratives globales », 26 p, disponible sur Internet à l’adresse : http://chairemadp.sciences-, consulté le 23 juillet 2008.
FIDH, Comprendre le commerce mondial et les droits de l’Homme, n° 423, juillet 2005, 23 p., disponible sur Internet à
l’adresse :, consulté le 23 juillet 2008.
Frison-Roche Marie-Anne, « OMC versus OIT », CJFE/CFCE, 2000, n° 2, p. 285-294.
Granger Clotilde et Siroën Jean-Marc, « La clause sociale dans les traités commerciaux », in I. Daugareith (sous
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Habbard Anne-Christine et Guiraud Marie, L’OMC et les droits de l’Homme, une équation à résoudre, Rapport
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Handl Günther, « Sustainable Development: General Rules versus Specific Obligations », in Sustainable
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Hansenne Michel, « Normes sociales et commerce international », CJCFE/CFCE, 2000, n° 2, pp. 273-283.
Howse Robert, « Back to Court after Shrimp/Turtle? Almost But Not Quiet Yet: India's Short Lived
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Preferences », American University International Law Review, 2003, vol. 18, n° 6.
Jansen Marion (OMC) et Lee Eddy (BIT), Commerce et emploi, un défi pour la recherche en matière de politiques, étude
conjointe du BIT et du secrétariat de l'OMC, 2007, 123 p., disponible sur Internet à l’adresse :
webdev/documents/publication/wcms_081743.pdf, consulté le 23 juillet 2008.


Lamy Pascal, directeur général de l’OMC, « Vers une gouvernance mondiale ? », allocutions lors de
l’inauguration d’un master à l’Institut d’études politiques de Paris, 21 octobre 2005.
Lanfranchi Marie-Pierre et Thomé Nathalie, « La gouvernance du commerce international : la question des
interactions commerce / normes sociales », in Boisson de Chazournes Laurence et Rostane Mehdi, Une société
internationale en mutation : quels acteurs pour une nouvelle gouvernance ?, Bruxelles, Bryulant, 2005, pp.185-208.
Lanfranchi Marie-Pierre, « Les droits sociaux fondamentaux dans le droit applicable au commerce
international », in Chérot Jean-Yves, Les droits sociaux à l’âge de la mondialisation, Aix-en-Provence, Presses
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Note de position FIDH, Les accords de partenariat économique et les droits de l’Homme, juin 2007, 18 p.
Note de position FIDH, Les études d’impact sur les droits de l’Homme des accords commerciaux et d’investissement conclus
par l’Union européenne, février 2008.
Paugam Jean-Marie, « État des lieux du commerce international, l’OMC au défi du GATT : bilan du système
commercial multilatéral », in « Mondialisation et commerce international », Cahiers français, mars-avril 2005,
n° 325, Paris, La Documentation Française, pp. 20-27
Ruiz-Fabri Hélène, « Concurrence ou complémentarité entre les mécanismes de règlement des différends du
Protocole de Carthagène et ceux de l’OMC ? », in J. Bourrinet, S. Maljean-Dubois, Le commerce international des
OGM : quelle articulation entre le Protocole de Carthagène sur la biodiversité et le droit de l’OMC ?, Paris, la
Documentation française, 2002, pp. 149-176.
Ruiz-Fabri Hélène et Gradoni Lorenzo, « L’affaire des OGM devant le juge de l’OMC : science et précaution
sans principes », Diritto del commercio internazionale, 2007, vol. 21, n° 3, pp. 641-664.
Ruiz-Fabri Hélène, « Chronique de la jurisprudence du système de règlement des différends », Journal du droit
international, 2002, vol. 129, n° 3, pp. 869-871.
Stern Brigitte, « L’intervention des tiers dans le contentieux de l’OMC », Revue générale de droit international public,
2003, n° 2, pp. 257-299.
Rapport global en vertu du suivi de la Déclaration de l'OIT relative aux principes et droits fondamentaux au
travail, Halte au travail forcé, conférence internationale du travail, 89e session, 2001, 134 p.
Rapport global en vertu du suivi de la Déclaration de l'OIT relative aux principes et droits fondamentaux au
travail , Une alliance mondiale contre le travail forcé, conférence internationale du travail, 93e session, 2005, 96 p.
Rapport du groupe d'étude de la Commission du droit international, Fragmentation du droit international : difficultés
découlant de la diversification et de l'expansion du droit international, Assemblée générale des Nations unies, 58e
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Rapport de l’OA, Japon – Taxes sur les boissons alcooliques, WT/DS8/AB/R, 4 octobre 1996, Japon c/ CE,
Canada et États-Unis.
Rapport de l’OA, WT/DS2/AB/R, États-Unis – Normes concernant l’essence ancienne et nouvelle formules, 20 mai
1996, Venezuela et Brésil c/ États-Unis.


Rapport de l'OA, WT/DS26, WT/DS28, CE – Mesures concernant les viandes et les produits carnés (hormones), 16
janvier 1998, Canada, EU c/ CE.
Rapport de l’OA, États-Unis – Prohibition à l’importation de certaines crevettes et de certains produits à base de crevettes,
WT/DS58/AB/R, 12 octobre 1998, Inde, Malaisie, Pakistan et Thaïlande c/ EU.
Rapport de l’OA, DS/161 et DS/169, Corée – Mesures affectant les importations de viande de bœuf fraîche, réfrigérée ou
congelée, 10 janvier 2001, Australie et EU c/ Corée.
Rapport de l'OA, CE – Mesures affectant l'amiante et les produits en contenant, WT/DS135/AB/R, 12 mars 2001,
Canada c/ CE.
Rapport de l'OA, CE – Désignation commerciale des sardines, WT/DS/231/AB/R, 26 septembre 2002, Pérou c/
Cour internationale de justice, avis consultatif du 9 juillet 2004, Conséquences juridiques de l’édification d’un mur dans
le  territoire  palestinien   occupé,    disponible      sur     Internet    à      l’adresse :       http://www.icj-
131&k=5a, consulté le 23 juillet 2008.
Rapport de l’OA, WT/DS246/AB/R, CE – Conditions d’octroi des préférences tarifaires aux PED, 7 avril 2004, Inde
c/ CE.
Rapport de l'OA, WT/DS285/AB/R, Etats-Unis – Mesures visant la fourniture transfrontière de services de jeux et
paris, 7 avril 2005, Antigua et Barbuda c/ EU.

Official documents
Textes        juridiques        de          l’OMC,        disponibles
                                                        sur        Internet        à                              l’adresse :, consulté le 23 juillet 2008.
Les conventions fondamentales de l’OIT, disponibles sur Internet à l’adresse : http://www-ilo-
fundam/index.htm, consulté le 23 juillet 2008.

Amnesty international, France :
Commission européenne :
Confédération européenne des syndicats :
Confédération syndicale internationale :
Europa :


OXFAM International :
World Standards Services Network :

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