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Jennifer Hillman, a Visiting Professor at the Georgetown University Law Center, moderated the panel. Professor Hillman formerly served as General Counsel at the Office of the U.S. Trade Representative (USTR), as a commissioner of the U.S. International Trade Commission (USITC), and as a member of the World Trade Organization’s (WTO) Appellate Body. The panel included Melissa Blue Sky, a Staff Attorney at the Center for International Environmental Law; Lewis Karesh, the Assistant U.S. Trade Representative for Labor; Jason Kearns, Chief International Trade Counsel (Minority Staff) for the U.S. House of Representatives Ways and Means Committee; and Marco Molino Tulio, a member of the Mission of Guatemala to the WTO.
Professor Hillman began the discussion by asking what has motivated the U.S. to include labor and environmental standards in trade agreements. The panel noted that in recent years Congress has insisted that such provisions be included as a condition of renewing the president’s trade promotion authority. However, as one panel member noted, this is hardly a new phenomenon, pointing to legislative prohibitions against the importation of goods produced by prison labor dating back to the 19th century. Members of the panel agreed that labor and environmental standards should be included in trade agreements because international trade has a direct impact on labor and the environment, although they acknowledged that some advocates of free trade reject this linkage.
Professor Hillman then asked panel members to assess the efficacy of including labor and environmental standards in trade agreements. The key advantage, panel members agreed, is that trade agreements have teeth in the form of viable enforcement mechanisms, which most other types of international agreements lack. Panel members also asserted that including labor and environmental standards in trade agreements provides the U.S. with greater leverage over its trading partners to influence their policymaking.
Professor Hillman asked if it would be more effective to give existing institutions, such as the International Labour Organization (ILO), greater authority to enforce the core labor standards embodied in international labor conventions. Members of the panel expressed broad agreement that it is preferable to have a single regime for dispute settlement, rather than multiple regimes, which likely would result in inconsistent outcomes and produce competing bodies of dispute settlement jurisprudence.
Turning to the impact of labor and environment standards on developing countries, Professor Hillman inquired as to whether developing nations have become more supportive of such standards over time. Panel members noted that developing nations initially were skeptical, fearing that such provisions would be used to limit, or even completely exclude, exports from their countries. However, as consumers in the developed world increasingly demand products that are ethically sourced and environmentally sustainable, developing countries are more likely to perceive adherence to stricter labor and environmental standards as a competitive advantage. In addition, many governments in developing countries increasingly view trade agreements as a catalyst for enacting broader domestic economic reforms that might otherwise be politically impossible to achieve.
Professor Hillman then raised the issue of whether or not the USTR is reluctant bring claims involving labor and environmental standards to the WTO for resolution. Panel members agreed that the WTO’s dispute settlement mechanism should only be used as a last resort, and that less formal methods, such as bilateral cooperation and technical assistance, are often more effective at resolving disputes.
One member of the panel asserted that the underlying problem with including labor and environmental standards in trade agreements is that they are treated as secondary concerns. The language employed is less precise, thereby making enforcement of the obligations more difficult. Panel members raised similar concerns when Professor Hillman inquired about the labor and environmental standards included in the Trans-Pacific Partnership (TPP), which were hailed by the Obama administration as being the most significant and progressive such provisions ever included in a U.S. trade agreement.
Members of the panel expressed greater satisfaction with the side agreement to the TPP between the U.S. and Vietnam concerning core ILO labor standards. The agreement requires Vietnam to allow the formation of labor unions that are genuinely independent of the ruling Communist Party, and permits the U.S. to unilaterally determine that Vietnam is not in compliance with the agreement, thereby the shifting the burden of proof. Some panel members questioned whether the executive branch would actively enforce the side agreement in the event that the TPP is revived and eventually enters into force.
Professor Hillman asked the panel to discuss the role of NGOs and other civil society organizations in enforcing labor and environmental standards in trade agreements. Panelists agreed that NGOs play a critical role in mobilizing public support for the enforcement of these standards and in holding government agencies and corporate entities accountable. Including labor and environmental standards in trade agreements has opened the door to greater cooperation among like-minded NGOs across national boundaries, enabling them to cooperate more effectively in monitoring and documenting non-compliance. Nevertheless, several panelists expressed their regret that compliance with the applicable standards has fallen short of expectations.
Professor Hillman concluded the discussion by asking the panel members if a private right of action to enforce labor and environmental standards, modeled on investor-state dispute settlement mechanisms, should be included in future trade agreements. Panel members were skeptical that a private right of action would result in more stringent enforcement of labor and environmental obligations, noting that some independent vetting mechanism would be needed to weed out frivolous claims. Most panel members would prefer to rely on the Office of the USTR to enforce environmental and labor standards. At the same time, they acknowledged that members of Congress and the public at large have lost faith in the executive branch’s willingness to actively enforce these provisions, particular when a new administration, less committed to labor and environmental issues, takes office.
Charles Bjork, International & Foreign Law Reference Librarian, Georgetown University Law Library