The Legal Obligations relating to ILO Instruments referred to in the Labour Chapter of US FTAs

1. The Legal Obligations relating toILO Instruments referred toin the Labour Chapter of US FTAs June Namgoong PhD Candidate Faculty of Laws, UCL

2. What I am going to talk about… [1] Trends and Issues in FTA labour chapters [2] 1998 ILO Declaration: Rights or Principles? [3] Relationship b/w Declaration & Conventions [4] ReportingProceduresunderDeclaration&VCLT [5] Finalising the Legal Analysis

3. [1-1] Trends in FTA labour chapters • Referring more to ILO Instruments From ‘their own’ to ‘external and universal’ • Expanding and Strengthening Obligations From ‘encouraged’ or ‘strive’ to ‘shall adopt (not fail)’ 3. Increasing Enforceability (+ adjudication & sanction) Purely Promotional or also Conditional? EU & US diverged

4. [1-2] Three Legal Obligations e.g. under TPP The Parties shall: • adopt and maintain; • not (offer to) waive or derogate from; and • not fail to effectively enforce in labour laws and practices the labour rights as stated in the Declaration (TPP Chapter 19, Articles 19.3-19.5)

5. [1-3] Issues in FTA labour chapters So, this is mainly the problem of US FTAs • US FTAs refer solely to 1998 ILO Declaration cf. EU FTAs refer not only to Declaration but also Conventions • UnclearContentofDeclaration(broader & promotional) cf. Conventions: specific & legalistic + supervisory mechanisms 3. Making Strong Enforcement Mechanism Useless Addressing this legal uncertainty is the key to success

6. [2-1] 1998 ILO Declaration The Text repeatedly uses two terms, ‘rights’ and ‘principles’, and in particular Paragraph 2 provides: Declares that all Members […] have an obligation […] to respect, to promote and to realize […] the principlesconcerningthe fundamental rightswhich are the subject of those Conventions, namely: (a) freedom of association and the […] right to collective bargaining; (b) the elimination of […] forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in […] employment and occupation What is the term ‘principles’ supposed to mean?

7. [2-2] Alston v Maupain on ‘Principles’‘A Regressive Terminology’ v ‘Revitalization Not Retreat’ Q. Does a principle have a lower status than a right? Yes v Not necessarily and it’s not a helpful framing of the debate Not a useless debate in the labour rights context in general and in the Declaration and FTA-adjudication contexts in particular

8. [3] Relationship b/w Declaration & Conventions • No significant link of whatsoever Difficult to accept given the language of the text about the link • Declaration = All Mbrs Ratifying 8 Convs in effect - All obligations under Conv’s constitute the content of Declaration - Supported by EU Commission, AFL-CIO, Prof JR Bellace etc. - But see e.g. footnote 3 to Article 19.3, TPP (only Declaration) • Declaration based on the principles of the Constitution, not on specific provisions of Conventions - Mbr: obligations from the principles of the Constitution regardless of its ratification - Worker: rights from Conventions, depending on the ratification, not from Declaration - Supported by Chair of the Drafting Committee, ILO Legal Advisers (Maunpain)

9. [4-1] Applying VCLT Please see VCLT at Appendix page 1 • <The Report of the Committee on the Declaration of Principles> as ‘preparatory work’, Art 32 In favour of View 3 but, it is supplementary means of interpretation 2. Two Reporting Procedures (Annex to Declaration), Arts 31.2-3 - Annual Follow-up concerning Non-Ratified Fundamental Convs - Global Report on fundamental principles and rights at work Need to look into more details

10. [4-2] Reporting for Annual Follow-up and Arts 31.2-3 • Mbrs who haven’t ratified any of 8 fundamental Convs are to fill out/submit report forms to ILO • The report forms (questionnaires) often include: - Questions as to what Conventions govern and/or; - Indicators that the Conventions in themselves do not provide, but the ILO supervisory bodies find as what the Conventions provide • All these reportings may constitute either the ‘context’ (Art 31.2) or what ‘shall be taken into account’ (Art 31.3) - Thus, the report forms that clearly declares themselves as forming ‘part of this component of the follow-up to the Declaration’; and - the relevant specific Convention provisions and/or ILO jurisprudence, are to be taken into account when interpreting the terms of Declaration

11. [4-3] Objections to the Argument for Closer Link • ‘relevant rules of international law applicable’ under Art 31.3.(c) – not undermine the rule of ratification Not allowed, through interpretation, to impose the same duties upon all Mbrs as if they have ratified the fundamental Convs • footnote 3 to Article 19.3(1), TPP - Parties clearly intend to be bound only by Declaration, nothing else - Probably excludes e.g. View 2 - But, should not completely preclude the possibility of Convention standards and the relevant ILO jurisprudence constituting the content of Declaration through interpretation • Call for a more nuanced approach satisfying more requirements above, if not all

12. [5-1] Finalising the Analysis • Declaration is not about ‘rights’ but ‘principles’ as understood by constitution in many jurisdictions e.g. Indian Constitution, EU Charter of Fundamental Rights • Principles require to be realised to the greatest extent possible given their legal and factual possibilities - Accepting Alexy’ thesis along with one [norms = rules + principles] - But not necessarily his concept of constitutional rights as principles • Optimisation takes the form of a proportionality analysis in their application (3 sub-tests) - (1) appropriateness; (2) necessity; (3) proportionality stricto senso

13. [5-2] Finalising the Analysis (TPP) • Specific rules (eg rights) of Conventions/ILO jurisprudence set a prima facie goal of principles under Declaration But not as a fixed point of goal, so satisfied to varying degree • A complainant makes a prima facie case by demonstrating the respondent fails to meet the rules • The respondent justifies the violation by showing why it’s been unable to meet the rules in the given legal & factual circumstances, deploying a proportionality test See e.g. TPP, Art 19.5.2 ‘Each Party retains the right to exercise reasonable enforcement discretion and to make bona fide decisions with regard to the allocation of enforcement resources’

14. Thank you very much