european union labour standards and sustainable development: unpicking the european union’s...

European Union Labour Standards and Sustainable Development: Unpicking the European Unions Approach Dr. David Mangan Dr. Rebecca Zahn

Our Sponsors We wish to thank our sponsors who generously contributed to the success of this conference.

Overview There are four sections to these slides and each begins with a title slide. For panels, the title of the panel is provided followed by a slide introducing the speaker, title and affiliation followed by notes on that individuals presentation.

Further Information We are happy to assist with providing further information about this conference. Please feel free to contact us at [email protected] [email protected] or [email protected]@stir.ac.uk

Aim of this Conference The European Union has the unique potential to encourage successful sustainable development in the sphere of labour standards through its external actions. This project aims to unpick the European Unions sustainable development policies and to evaluate whether they fit the locale by encouraging a debate between academics and policy makers. At its core therefore, this project seeks to employ an innovative and interdisciplinary approach to engage with this important landscape and to chart how the European Union may take a lead role.

What is sustainable development? In general, sustainable development is both a goal to be achieved and a means to promote well-being (Novitz & Mangan, 2) Sustainable development term has broader application such that it includes various facets of social and economic planning. (Novitz & Mangan, 2) See for example the Johannesburg Declaration on Sustainable Development 2002, [5]: we assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development economic development, social development and environmental protection at the local, national, regional and global levels.

Sustainable development and labour: how the two may interact 1.Labour standards which secure access to material well- being, such as non-discrimination in access to jobs and provision of a living wage, can assist in addressing poverty, thereby raising levels of economic development. 2.Regulation of working conditions, such as hours of work and health and safety, can enable workers not only to make economic provision for their families but care for their dependents, thereby promoting social cohesion, well-being and stability. 3.Procedural entitlements to freedom of association, worker information and consultation, collective bargaining and industrial action can enable workers to assist employers in making better managerial decisions, which may lead to sustainable income for the employer and jobs for the workers. These kinds of actions by workers may also lead to enhanced income, again alleviating poverty and creating a larger consumer base. (Novitz & Mangan, 4-5).

Fit, sustainable development and labour standards Does sustainable development fit the locale? This is a key question and participants in this conference engaged with it in various ways (as seen below). As a theme, the notion of a fit is one which stretches across many aspects of the European Union. Member States often desire their own means of implementing overarching principles. In the context of labour law, participants in this conference speak of a framework within which to consider practical perspectives on the topic from trade unions, NGOs, government agencies and other stakeholders.

Competence of the European Union with regards to sustainable development The EU has the unique potential to encourage successful sustainable development in the sphere of labour standards through its external actions as the EU is bound by its Treaties to respect labour standards not only internally (art. 3 TEU) but also, since the Treaty of Lisbon, to pursue sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty (art. 21 TEU). Moreover, from the outside, the EU is perceived as a normative power in social issues and an attractive partner, owing to the unique combination of economic dynamism with a social model. Eichhorst, W., Kendzia, M., Knudsen, J.B. and Wahl-Brink, D. 2010. External Dimension of EU Social Policy, IZA Research Report No. 26.

Further Reading P Muchlinski, Multinational Enterprises and the Law (Oxford: OUP, 2007), Chapter 13. T Novitz & D. Mangan, The Role of Labour Standards in Development: From Theory to Sustainable Practice? Oxford University Press/The British Academy, 2011. R. Zahn, EU internal and external social policy in times of global crisis. In Schiek D (ed.). The EU Economic and Social Model in the Global Crisis: Interdisciplinary Perspectives. Studies in Modern Law and Policy, Ashgate, 2013, pp. 165-186. On sustainable development as an overarching goal, B. Sjafjell, The very basis of our existence: Labour and the neglected environmental dimension of sustainable development in The Role of Labour Standards in Development: From Theory to Sustainable Practice?

Keynote Address: The paradigm of sustainability in an European Union context Collective engagement in protection of future interests? Tonia Novitz Professor of Labour Law University of Bristol

Sustainable development in the Treaty on European Union Internal dimension Article 3(3) of the Treaty on European Union (TEU): The Union shall [] work for the sustainable development of European Union based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. External dimension Article 3(5) TEU: the sustainable development of the Earth e.g. European Union GSP+ in European Union Regulation 978/2012.

Dynamic and participatory aspects of sustainable development: A role for Trade Unions? Participation UN Declaration on the Right to Development, Articles 1(1) and 2(1) Rio Declaration, Principle 10 Johannesburg Declaration on Sustainable Development 2002, para. 26 TEU, Article 11. The role of trade unions? Short term interest in jobs versus long term interest in sustainability? The role of law in permitting workers collective engagement with the latter.

I. The scope of Information & Consultation and Collective Bargaining: Engagement with future workers? Case C-176/12 Association de mediation sociale (AMS) v CGT, Judgment of 15 January 2014. Art. 27 of the European Union Charter of Fundamental Rights and Directive 2002/14/EC Cf. Case C-67/96 Albany International [1999] ECR I-5751 Case C-180/98 Pavlov [2000] ECR I-6451 especially at paras 68 and 69 and Case C-413/13 FNV Kunsten Informatie en Media v Staat der Nederlanden (forthcoming reference)

II. The scope of freedom of association and the right to strike: engagement with future effects of employer actions? UNISON v UK Application No. 53574/99, Dec. 10.2.02 [2002] IRLR 497; cf. [1999] IRLR 31: it is illegitimate to dispute future implementation of terms and conditions with a future employer Cited in Court of Appeal judgment - International Transport Workers Federation (ITF) and Finnish Seamens Union (FSU) v Viking Line [2006] IRLR 58 at para. 59. Case C-438/05 ITF and FSU v Viking [2007] ECR I-0779: protection of workers narrowly defined: immediate and not to be policy-based?

III. The scope of collective agreements: future coverage? Case C-426/11 Alemo-Herron and others v Parkwood Leisure Ltd [2013] IRLR 744, Judgment of 18 July 2013 Article 16 of the Charter: the freedom to conduct a business prevails Cf. Case C-499/04 Werhof v Freeway Traffic Systems GmbH & Co. KG [2006] ECR I- 2397 NB: Case C 328/13, sterreichischer Gewerkschaftsbund v Wirtschaftskammer sterreich Fachverband Autobus-, Luftfahrt- und Schifffahrtsunternehmungen, judgment of 11 September 2014

A vision for the future: 2020 and beyond Legislative change? European Trade Union Confederation (ETUC) recommended: European Union procurement rules should encourage contracting authorities to choose products and services on the basis of social and sustainable development considerations Directive 2014/23/European Union, Article 30(3); Directive 2014/24/European Union, Article 18(2) and Directive 2014/25/European Union, Article 36(2): MS shall take appropriate measures to ensure economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or international Commission Communication European Union 2020: Trade Unions are stakeholders for dialogue BUT aim is modernisation of labour markets NOT collective engagement?

Explaining the Framework: Academic Perspectives on the European Unions Approach to Sustainable Development in the Context of Labour Standards

The Surprising Rise of Labour Standards in European Union Trade Agreements Professor Jan Orbie Associate Professor, Centre for European Union Studies Department of Political Science, Ghent University

Puzzling Observation Let us start with the puzzling observation that the European Unions commitment to promote social norms through trade agreements has increased over the past decade, despite the less favourable conditions to do so. A comparative analysis of the European Unions free trade agreements over the past two decades shows that both the scope and the enforceability of the social clauses in these agreements have been strengthened since the mid-2000s. Moreover, non-state actors have been more and more involved in recent agreements. One would have expected less emphasis on the social dimension since the mid-2000s given the waning influence of social-democratic parties in European Union policy-making and the growing impact of free trade orthodoxy with the Global European Union trade strategy.

Possible Explanations Engaging in a search for explanations, we emphasize that protectionist sentiments do not offer an explanation. Instead, we suggest that since the end of the 1990s t he norm of social trade has reached an unobjectionable status within the European Union so that opponents cannot attack it openly. European Union shifted to the right, but social ambitions have increased.

The Reframing of Sustainable Development At the same time, however, social trade has been reframed in terms of sustainable development rather than human rights or labour rights. Whereas this reframing partly explains the consolidation and further enhancement of the social dimension of European Union trade agreements, we also conclude with some critical notes on this evolution.

The Reframing of Sustainable Development European Union takes more cooperative, incentive- based approach Discursive politics approach/explanation International Labour Organisation (ILO) norms have a high level of international legitimacy, impossible to resist, But norm opponents can blur and reframe the norm through paradigm of sustainable development (which dilutes labour standards). Clauses have become more ambitious, but frame has moved from human rights to sustainable development.

Lingering Question Has sustainable development become a vague phrase/empty signifier which is difficult to oppose?

The Use of Free Trade Agreements to Promote Social Objectives Dr. Lorand Bartels University Senior Lecturer University of Cambridge, Faculty of Law Fellow, Trinity Hall

Social Objectives as Ubiquitous The inclusion of sustainable development clauses in EU trade policy are surprising as social clauses contradict the DNA of trade policy, which hangs on advantage. Social objectives - concerning human rights, labour and environment - are an increasingly common part of free trade agreements. But these objectives are in agreements for a variety of reasons.

Trade and Social Objectives Broadly, the prospect of a trade agreement may be used as an incentive to encourage another party to comply with social objectives. The threat of withdrawal of benefits under that agreement may be used as a means of enforcing compliance with these objectives. But the violation of labour rights is nowhere to be seen; which is surprising since it is the is the main input of many products.

Trade and Social Objectives More narrowly, social objectives can be included in an agreement to ensure that the agreement itself does not undermine domestic social standards either abroad or (and here there can be a protectionist element) at home. Trade agreements have become vehicles for promotion of social norms, which is surprising.

Where are labour standards in trade agreements? Can be found in 1 Exceptions: they could be placed in agreements as exceptions so that obligations can be overridden (i.e. morality, environment, intellectual property rights, public health.) BUT labour is nowhere to be seen; even though it is the main input of products. CARIFOURM EPA (European Union and Caribbean Community Economic Partnership Agreement (CARIFORUM Agreement)) makes reference to child labour to protect public morality and health exception that proves the rule, and it wasnt the European Union that did it. 2 Conflict clauses: an agreement can be superseded by another agreement (in line with Vienna Convention on Treaties) European Union has not used this. US has utilised this with the North American Free Trade Agreement (NAFTA).

Where are labour standards in trade agreements? 3. Positive regulation: using a trade agreement as a vehicle to oblige a third country to adhere to labour conventions. This st This stops the problem (advantage in the form of cheap labour) at the source rather than the border

Sources of sustainable development in the European Union Chapters on sustainable development date from 2008 (CARIFORUM Agreement). Obligations are relatively easy to understand (copy/paste from US provisions). CARIFORUM Agreement new obligation not to encourage trade or FDI by lowering level of labour/environmental/social protection lock-in provision of existing laws. Goes beyond US standards. Lots of talk (may be constructive), but nothing in way of enforcement

Human rights clauses as core labour standards In this sense sustainable development is not novel (just reframing of human rights clauses that were always in European Union trade agreements). Both sides to comply with human rights obligations. Non-execution clauses allow possibility of trade sanctions. In reality, such clauses are used for political reasons (rather than human rights ones); that is in cases of violation of political and civil rights, not in cases of violation of labour rights.

Observations of the European Union and Sustainable Development European Union ideology force for good in the world (not matched with practice) Overlooked clause: must respect indivisibility of human rights not only external policy but external effects of internal policies (eg Common Agricultural Policy which is the agricultural policy of the European Union).

Sustainable Development: the economic model Expanded from an environmental concept to a broader one. Concept is being sold to developing countries along with capacity building etc. But when it comes down to it, the European Union does what suits it (economically).

Voices from the Field: Testing for Incompatibility Between Sustainability and Competitiveness

Testing for Incompatibility Between Sustainability and Competitiveness Jeffrey Vogt Legal Advisor, International Trade Union Confederation

The Setting Increasingly, governments are negotiating commitments on human rights, including labour rights, in their trade arrangements, including trade agreements and trade preference programmes. The demandeurs in this area remain the United States, the European Union and Canada, though other countries, including Japan, Australia, New Zealand and Chile, are also adopting labour rights criteria, though weaker, in their own trade arrangements.

The Setting However, despite the considerable effort spent negotiating these labour provisions, trade partners rarely respect these legal commitments in practice. The European Union has been reluctant to enforce these commitments using the formal procedures it has negotiated. This stands in contrast to the practice of the United States, which is considerably more active in enforcing the labour provisions of its trade agreements and trade preference programs (though not without problems).

Challenges with the European Union Generalised System of Preferences (GSP) Unlike US and Canadian FTAs, recent European Union FTAs provide no mechanism to arbitrate disputes over labour rights obligations or the possibility of fines or sanctions in the case of a breach of those rights. As such, the Comprehensive Economic and Trade Agreement with Canada (CETA) is weaker than the labour provisions of NAFTA (North American Free Trade Agreement), to which Canada is also a party, negotiated over 20 years ago. These structural flaws weaken the effectiveness of these instruments. The European Union provides rather generous market access under the GSP general arrangement, and duty- free/quote-free market access under the Everything but Arms arrangement for least developed countries.

The European Union Generalised System of Preferences and Human Rights (GSP+) The European Union also maintains a special incentive program, the so-called GSP+, for those countries that have ratified a long list of international human rights treaties, including the ILO core conventions, and for which the relevant monitoring bodies have not identified a serious failure to effectively implement any of those conventions. Preferences may be withdrawn in all cases if there is a serious and systematic violation of the core labour rights. In practice, however, egregious labour rights violators continue to benefit from these preferences. GSP+ has been granted to countries, such as Guatemala, where abundant evidence indicated serious violations of the ratified International Labour Organisation conventions prior to being granted the trade preferences. o Indeed, the US government has recently taken Guatemala to international arbitration over its serious and widespread labour rights violations.

Politics: The Perennial Difficulty A common problem with all such arrangements is the political, rather than legal, nature of the enforcement regimes. In all cases, decisions whether to enforce are complicated by foreign policy considerations, as well as commercial impacts on importers. As such, these tools are used only reluctantly and after lengthy campaigns to pressure governments to act. Absent sustained public pressure, and high-level engagement at a technical level, such provisions are rarely if ever enforced. The relative political and economic power of the party complained against is also a major factor.

A Voice by No Vote: A Reality Check Karin Ulmer Senior Policy Officer European Union Civil Society Organisation Aprodev

Overview While there are voices in the field, there is no vote for this voice. This is the reality spoken to by the practical experiences of those at the partner/grassroots levels and the practice of advocacy on European Union policy making (legislation and implementation). Further challenges are found in the impact of trade policies as well as the use of existing human rights clauses and language in trade policies. Are the inclusion of a chapter on sustainable development and the involvement of civil society in the implementation thereof a means through which the European Commission may sell trade agreements to the public (i.e. an appeasement)?

Recommendations To define indicators and matrix in order to identify sustainable development models. To address goals and paradigms of sustainable development models. To include the essential elements clause as a gradual rather than as a nuclear instrument. In tis way pressure can be built up gradually. A revised institutional framework agreement to allow for full transparency of negotiation positions and draft texts. The concepts of sustainable development and competitiveness should be clarified in order to investigate the link between both. To engage with European Union Sexual Health and Reproductive Rights to make trade work in a way that addresses human rights Can we use existing trade tools and instruments and use them or remodel them to become human rights instruments? The Lisbon Treaty can be seen as an opening: trade policy now embedded in foreign policy in general.

Sustainable Development in European Union Trade Agreements Judith Kirton-Darling Member of European Union Parliament (North East England)

Global European Union, Sustainable Development and Labour Standards Marked out as a red-line in the 'Global European Union' strategy, various sustainable development chapters have been concluded - all have been largely ineffectual. From the Korea agreement to the CETA, European Union standards have weakened. In this context, is it time to fundamentally change the European Union's approach and 'model sustainable development text' to ensure effective enforcement of labour standards?

Competitiveness of the European Union: The Political Agenda Behind Trade Agreements Competitiveness = unit labour cost in the European Union Commission. In European Unions offensive interests to push for strong social dimensions level regulatory playing field. Not just about moral incentive, but competitiveness. Are we going to have American standards or European Union ones? European Union policy-makers want to get back to trade matters, and get rid of human rights component

Another Side of Competitiveness Competiveness comes from innovation, and 90% of innovation comes from workplace organization workers identifying how to improve their industry related to worker autonomy etc

Losing Ground? European Union has been losing ground on quality of sustainable development clauses since Korea FTA Economic Community of West African States Economic Partnership Agreement (EU-ECOWAS EPA) does not include any provisions on sustainable development or labour rights. Swaziland has recently banned all trade unions, while European Union has increased preferences (USA has reduced preference almost simultaneously) Commission not aware of any problems Neither teeth nor appetite to include/promote sustainable development

Human Rights: The Strategy for Sustainability in Employment?

Sustainable Development, Human Rights, and Labour Standards: How Does the European Unions Approach to Labour Migration Fit? Professor Judy Fudge IAS Nantes Fellow Professor, Kent Law School

Migration as Complementing Development Most discussions of the European Unions development agenda that emphasize the social dimension of globalisation in general or labour rights and standards in particular tend to focus on either trade agreements or aid. In part, this emphasis was based on the assumption that migration and development were inimical; the idea was that once a country began to develop its citizens would no longer continue to migrate to more economically advanced countries.

Complexities in the Relationship Between Development and Migration 1999: the European Union explicitly linked migration to its development objectives (Tampere European Union Council conclusions of 1999 (16/10/1999 - Nr: 200/1/99)). 2005: the European Union published a Communication on Migration and Development that emphasized the need to make migration work for development, after which the Council adopted the Global Approach to Migration (GAM) ((2006/C 46/01)). The GAM introduced Mobility Partnerships, which emphasise the need to facilitate remittances, engage diasporas, and promote circular migration, as the main tool for managed temporary migration with third countries.

Complexities in the Relationship Between Development and Migration 2011: the European Union Commission launched its latest proposal, named the Global Approach to Migration and Mobility (GAMM), which lists maximizing the development impact of migration and mobility as one of its four pillars (European Union Council, European Union Commission and European Union Parliament, The European Union Consensus on Development, 2006, OJ (2006/C 46/01)). A distinctive feature of the GAMMs approach is that migrants are placed at the centre and their human rights are to be mainstreamed throughout the migration cycle.

Walking the Talk: The European Union, Labour Standards and Development To what extent is the GAMMs commitment to migrants rights being put into practice? How does the GAMMs emphasis on migrants rights impact upon development? The Seasonal Workers Directive (Directive 2014/36/European Union of the European Union Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers) is instructive here.

Walking the Talk: The European Union, Labour Standards and Development Consider the following To what extent does the Directive protect migrant workers human rights and ensures that they have access to meaningful labour standards? How does the Directive facilitate circular migration, which is seen as a key component of development- oriented migration? What is the relationship between this Directive and Mobility Partnerships, which are the European Unions key instruments for linking migration to development, when it comes to migrant workers rights and circular migration? What we find is that European Union institutions are deeply divided on migration.

Sustainable Development: Securing a Social Rights Foundation for European Union Investment Agreements Using the European Union Charter of Fundamental Rights Professor Jeffrey Kenner Chair of European Unionropean Law University of Nottingham Human Rights Law Centre

The Precarious Present of European Union Trade and Labour Standards This presentation evaluates two points: 1.The potential of the European Unions recently acquired powers in the field of foreign direct investment to advance sustainable development with reference to human rights in the Charter of Fundamental Rights of the European Union. 2.The danger that, if policies are not anchored to the Charter, the exercise of these powers could undermine the social rights dimension of sustainable development.

A Call for a European Union Model Bilateral Investment Treaty There is a need for a European Union Model Bilateral Investment Treaty (BIT) that is fully compliant not only with the social rights in the Charter but also the right to a fair hearing and an effective remedy. Trade unions and NGOs, such as the World Development Movement, have expressed strong reservations about the outcome of secretive negotiations between the European Union and the US, as the worlds two largest trading blocs, on the Transatlantic Trade and Investment Partnership (TTIP).

The Transatlantic Trade and Investment Partnership On the substantive provisions, concerns have been raised about threats to regulatory standards, the ability to employ locally and the protection of employment and trade union rights.

Essential Considerations If TTIP is based on an investor-state dispute settlement (ISDS) procedure, as has been the norm with BITS, it may not only be incompatible with the right to a fair hearing and an effective remedy, and related Charter rights, but also impose a system that is weighted in favour of multinational companies.

Essential Considerations It also raises the danger that, in the absence of an European Union BIT, or sufficient protection of human rights recognised in the Charter, TTIP, because of its sheer size and scale, and the power of the two players involved, could become the de facto model for deregulation and poor standards in future bilateral and multilateral trade and/or investment agreements with developing countries in which the European Union will be exercising asymmetrical power.

Thank You Thank you to our speakers, attendees, sponsors and readers.

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