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Involving Civil Society in the Implementation of Social Provisions in Trade Agreements: Comparing the US and EU Approach in the Case of South Korea

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The last few years have seen an increase of both free trade agreements (FTAs) and social provisions therein, such as the standards from the International Labour Organisation (ILO). The US and the European Union (EU) are two of the biggest proponents of the trade-labour linkage. While the US practice is characterized by a ‘conditional’ approach, the EU’s approach is seen as ‘promotional’. Nonetheless, both foresee the possibility for civil society – such as unions, business organisations and academics - to monitor the implementation of social provisions. By focusing on the trade agreements of the US and the EU with South Korea, this paper assesses to what extent these civil society monitoring mechanisms differ and to what extent they can be effective in the long run. Methodologically the paper combines an analysis of the legislative texts of the trade agreement and of official documents produced by the mechanisms on the one hand and expert interviews on the other hand. The explorative study shows that the following factors are important for long term impact: fixed participants, funding, feedback of the governments on the advice of the mechanisms and strong institutionalisation.
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Involving Civil Society in Social Clauses
and the Decent Work Agenda
L
Lore Van den Putte, Ghent University, Belg ium
ABSTRACT
The United States (US) and the European Union (EU) are two of the biggest proponents of the
trade–labour linkage. While US practice is characterised by a ‘conditional’ approach, the EU’s
approach is rather more ‘promotional’. Nonetheless, both foresee the possibility of civil society
organisations such as unions, business organisations, non-governmental organisations (NGOs) and
academics participating in the monitoring of the implementation of labour provisions. By focusing
on the trade agreements of the US and the EU with South Korea, this article assesses to what extent
these civil society monitoring mechanisms differ de jure as well as de facto. Methodologically, the paper
combines expert interviews with an analysis of the legislative texts of trade agreements and of
official documents produced by the mechanisms. This exploratory study shows that while such
mechanisms are intended to be promotional, they do have the potential to contribute to respect for
labour standards. However, in order to concretise this potential, the institutionalisation and
accountability of the mechanisms should be strengthened.
KEYWORDS
Labour, trade, civil society, European Union, South Korea
Introduction
Recent years have seen an increase in the incidence of free trade agreements (FTAs) and of
labour provisions therein (International Institute for Labour Studies, 2013). Thus trade policy has
become a means to promote respect for the International Labour Organization’s (ILO) standards in
third countries. Two of the best-known proponents of this trade–labour linkage are the European
Union (EU) and the United States (US). There are discernible differences between these two actors
with respect to the normative content and design of their approaches to fostering compliance with
these labour commitments (Vogt, 2014). While the EU is known for its ‘promotional’ or cooperative
approach – which is characterised by consultations and dialogue – the US applies a ‘conditional’
approach in which the respect for labour rights is seen as a condition for economic advantages on
the US market (International Institute for Labour Studies, 2013; Oehri, 2014). While this difference
in their overall approach is widely noted in the literature, scholars and practitioners are less likely to
be aware that both provide an opportunity for civil society to monitor the implementation of labour
provisions. One of the strategic objectives of the Decent Work Agenda is the promotion of social
dialogue. In this regard the involvement of civil society in the monitoring of labour provisions in
trade agreements may be vital to achieve the objectives set in the Decent Work Agenda. This
involvement is achieved via domestic as well as transnational mechanisms.
Global Labour Journal, 2015, 6(2), Page 221
Domestic mechanisms involve the establishment of a national committee of civil society
representatives or granting additional competences to some existing structure which then advises its
own government on the implementation of the labour provisions. Transnational mechanisms
include civil society representatives from both state parties who meet to advise both governments
on the implementation of social provisions.
The involvement of civil society in trade agreements can be traced back to three principal
causes: the expansion of issues covered by trade policy that have a far-reaching impact on peoples’
daily lives (Maes, 2009); the increasing importance that is given to norms such as democratic
participation in the framework of international trade policy (ECDPM, 2011: 1); and the complexity
of trade policy which requires input of actors traditionally not involved.
While a significant amount of research exists on the role of civil society during trade
negotiations (see for example Del Felice, 2012; Dür and De Bièvre, 2007; Spalding, 2008), little
research has been conducted on the role of civil society in the implementation of trade agreements.
There are at least three reasons why this notable gap in the literature needs to be filled. Firstly it is
striking that while the involvement of civil society in complaint mechanisms1 (Banks, 2010;
Dombois, Hornberger and Winter, 2003) and their contribution to the establishment of
transnational advocacy coalitions had been studied (see for example Nolan García, 2011),
transnational civil society mechanisms have not been the subject of study. This is surprising because
it could be expected that they would provide even better opportunities for transnational advocacy
building, given that they provide an explicit forum for civil society to meet. In this regard recent
research has suggested that the dialogue and consultation mechanisms of EU trade agreements
contribute to an improvement of labour standards in partner countries because the civil society
organisations involved learn from their European counterparts in their advocacy for improved
labour standards (Postnikov and Bastiaens, 2014). Secondly, from a more policy-oriented
perspective, the inclusion of civil society in the implementation of social provisions has been
proposed by the International Institute for Labour Studies (IILS) as a possible avenue to increase
the effectiveness of the social dimension of bilateral trade agreements (IILS, 2013: 97–113). Not
only can trade partners benefit from the expertise of civil society representatives, involving them can
in itself increase the legitimacy of social provisions. Thirdly, while many academics and policy
makers stress the differences between the US and the EU approaches in the labour–trade nexus, in
practice these differences are less marked, with both actors employing a cooperative approach
towards their trade partners (Oehri, 2014). Via a comparative assessment of the involvement of civil
society in the implementation of labour provisions, a new and understudied topic, this article
contributes to the debate on the supposed differences between the EU and US approaches. Even
though this research topic is a moving target, it is important to investigate it now in order to draw
some early lessons that may inform current practice. Among other areas, empirical research is
especially needed on whether and how civil society representatives can raise issues effectively within
the mechanisms recently set up by the EU (Campling, Harrison, Richardson and Smith, 2014).
In the US case the involvement of civil society in the implementation of labour provisions
began at the beginning of the 1990s with the side agreement to the North American Free Trade
Agreement (NAFTA), the North American Agreement on Labour Cooperation (NAALC). In 1994
an advisory body comprising civil society organisations was set up to advise the US government on
the implementation of the NAALC. In the EU case the practice of involving civil society is more
recent but nevertheless has become a standard element of the so-called new generation of EU FTAs
(Van den Putte, Bossuyt, Orbie and De Ville, 2013). The EU practice originated with the EU–Chile
Association Agreement (signed in 2003). However, while civil society bodies are envisaged in many
agreements, in most cases they have yet to be formally established. Only in the case of the Korea
agreement, which entered into force in July 2011, have these provisions been implemented.2 Given
Global Labour Journal, 2015, 6(2), Page 222
that South Korea is the first case in which both the US and the EU have in practice set up
monitoring mechanisms, it provides an ideal case for our purposes. Furthermore, the South Korean
case is one in which trade agreements with very high commercial significance are being struck with a
state with a questionable labour standards record. For example, freedom of association problems are
frequently reported in South Korea. Last year the legal status of the Korean Teachers’ Union was
withdrawn and there was a raid on the headquarters of the Korean Confederation of Trade Unions
(KCTU) (Jenkins, 2014; The Hankyoreh, 2014). Migrant workers also face discrimination and
exploitation, even to the extent of experiencing forced labour, especially in the agricultural sector.
(Amnesty International, 2014; Amnesty International USA, 2013). In January 2014 a mission from
the International Trade Union Confederation (ITUC) and the Trade Union Advisory Committee to
the OECD (TUAC) was sent to South Korea to examine anti-union government policy and the
repression of Korean trade unions (TUAC, 2014). Given that South Korea is usually seen as a
developed economy, this article also contributes to the debate on the trade–labour linkage in
agreements between developed economies.
Given that domestic and transnational monitoring mechanisms are an understudied topic with
promising expectations, this article is a first attempt to systematically and comparatively assess the
way in which the US and the EU involve civil society in the labour aspects of their bilateral trade
agreements. The central question addressed is how civil society is involved in the implementation of
labour provisions, both from a de jure and a de facto perspective. In other words, how is civil society
involvement dealt with on paper in the agreements themselves and how does it play out in practice?
It is important to note that this article by no means aims to give a holistic or permanent evaluation
of the effectiveness of these mechanisms. Rather, this research is exploratory. Note also that this
article is written mostly from a US and an EU perspective. Therefore, we encourage research that
looks into the South Korean perception of this issue.
The article consists of three parts. The first gives a short overview of the negotiations and the
difficulties that the labour aspects of the US and EU agreements with South Korea raised within the
US and the EU. The second part systematically compares the way in which the civil society
monitoring mechanisms are set out in the trade agreements and implemented in practice. The third
part draws some tentative conclusions as an inspiration for the further development of the currently
existing mechanisms.
The central argument put forward in the paper is that while civil society monitoring
mechanisms are often described as ‘promotional’ (IILS, 2013: 77) or ‘soft’ because they do not
amount to precise, enforceable conditions for the maintenance of trade preferences, they might
nevertheless contribute in the long run to an environment that is more conducive to high labour
standards. In order for this to materialise, this paper suggests that mechanisms should be better
institutionalised and the duty of governments to respond to issues raised by civil society
representatives should be strengthened. With regard to the scope of the mechanisms, a
circumscribed scope guarantees the discussion of all issues, but might become unfeasible in the long
run.
1
1. Some Background on the La bour Provisions of the US and EU Agreement with
South Korea
This part focuses on the role of labour provisions in the negotiation of the trade agreements,
which was not without controversy. However, we should note that most of the concerns voiced in
relation to the trade agreements were related to the automobile sector.
Global Labour Journal, 2015, 6(2), Page 223
1.1 The Korus Agreement: Social Provisions Adapted to Domestic Democratic Demands
Negotiations between the US and South Korea started in 2006 and were concluded in 2007.
However, the Democratic Party in the US House of Representatives wanted to include labour and
environmental provisions in trade agreements.3 As such the South Korean side accepted
modifications to the commitments made in the 2007 agreement in return for American concessions
on other issues4 (Inside U.S. Trade, 2007c). As is usually the case for trade agreements negotiated by
the US, the labour issues were included in a separate chapter.
The agreement did not enter into force until 2012. Among other reasons, this delay was due to
differences between Republicans and Democrats over the automotive sector and the beef industry
(Cooper et al., 2013). The labour provisions in the agreement were also contested.
In March 2007, sixteen House Democrats sent a letter to the Korean president complaining
that Korea was not implementing ILO recommendations (Inside U.S. Trade, 2007b). In April, the
US Labor Advisory Committee5 complained that the advisory procedures were not being respected
by the US Trade Representative (Inside U.S. Trade, 2007a). Not only did they have insufficient time
to investigate the agreement, the text they were provided with was incomplete. On the substantive
issues, the Labor Advisory Committee complained that the agreement did not foresee that the
Parties would respect the ILO’s Core Labour Standards (CLS), nor did it contain adequate dispute
settlement mechanisms (Labor Advisory Committee, 2007). The Committee advised the President
not to sign the agreement as it stood and warned that if the agreement were to be sent to Congress
in its current form, Congress should reject it. AFL-CIO, the largest federation of unions within the
US, was also opposed to the trade deal with Korea, especially because of concerns about the
freedom of association and the right to organise and bargain collectively (AFL-CIO, 2010).
Lobbyists argued that this was a partial reason why ‘only’ 59 Democrats (31% of the Democrats) in
the House (instead of the expected 70) voted in favour of the agreement (Inside U.S. Trade, 2011).
Despite the ‘low’ Democratic support, the trade agreement was passed with 278 votes in favour (of
which 219 were Republican) and 151 against.
1.2 The EU–South Korea Agreement: A Template for Civil Society Involvement?
Negotiations for an EU–South Korea trade agreement started in 2007 and were concluded in
2009. The agreement entered into force in July 2011. As such it was the first of the new generation
FTAs announced by the EU in its Global Europe Strategy (European Commission, 2006). At the
time it was the most comprehensive FTA ever negotiated by the EU.
Current EU practice is to include labour and environmental provisions in a separate chapter
called ‘Trade and Sustainable Development’. Given that the EU aims to take a holistic approach to
sustainable development that combines its social, environmental and economic aspects, the
mechanisms set up to advise on labour provisions are also intended to cover environmental
provisions. Further detail on the social provisions of agreements is included in the Rules of
Procedure.
As in the US case, concerns were raised about the labour aspects of the trade deal. As early as
2007, in a resolution on the Korea agreement the European Parliament asked for the adoption of an
ambitious approach to sustainable development and the incorporation of binding social clauses
(European Parliament, 2007). In this regard it explicitly referred to the role of the US Congress in
pushing for stronger social and environmental provisions in the US–Korea agreement. Furthermore
it asked that the agreement should foresee the establishment of a ‘Trade and Sustainable
Development Forum’ in which employers, employees and NGOs could work together to ensure
that market opening was accompanied by rising social standards. The parliament also organised a
hearing on the Korea agreement in 2010.6 Most of the discussions on the South Korea agreement
focused on the economic benefits and disadvantages of the agreement.7 Its social provisions,
Global Labour Journal, 2015, 6(2), Page 224
however, were applauded by the European Parliament and its committee on International Trade.
The inclusion of civil society in the Domestic Advisory Group (DAG) was seen by the legislative
arm of the EU as an important innovation (European Parliament, 2011).
In South Korea, civil society organisations were in general less opposed to the EU agreement
than to the US agreement (Kim, 2013). Given the long-standing anti-American sentiment among the
population, the agreement was perceived as being mostly beneficial to the US. The EU agreement
was less controversial, given that relationships were not very well developed yet and that the EU is
not regarded as a major player in the region. However, these sentiments were not based on an
objective evaluation of the costs and benefits of the agreements for the South Korean economy.
2
2. Com parative Overview of the Implementation Mechanisms
Having shown that the labour aspects of trade relations with South Korea are not
uncontested, we continue with a systematic comparative analysis of the monitoring mechanisms
included in both agreements. As mentioned earlier, the two trade agreements discussed here both
include domestic and transnational monitoring mechanisms, but there are some significant
differences between the provisions of the US and the EU. We begin by setting out the criteria on the
basis of which the mechanisms are compared.
2.1 Criteria
The criteria used to compare the design of the four mechanisms were developed on the basis
of an analysis of the literature on the involvement of civil society in trade policy and expert
interviews conducted by the author.8
Our first criterion, institutionalisation, measures the extent to which the mechanism enables the
involvement of civil society representatives to become ‘normal practice’ within and between the
countries concerned. It consists of two aspects: obligation and precision (Abbott et al., 2000).
Obligation refers to whether civil society consultation is obligatory in the sense that the
establishment and functioning of these mechanisms (for example, the schedule of meetings) is not
left to the discretion of the parties. Precision relates to the level of detail in which the operation of
consultation mechanisms is specified. The more precise the formulation, the higher the level of
institutionalisation (Abbott et al., 2000). If the trade agreement is imprecise, it is more likely that
reluctant governments will find a way not to establish a functioning mechanism. In Table 1,
institutionalisation can be high (+), intermediate or unclear (/), or low (-).
The second criterion, scope, refers to whether the mechanism is set up for one agreement
specifically (as is the case for EU agreements) or whether it is designed to monitor the labour
provisions of more than one trade agreement. If civil society organisations have to discuss the
labour provisions of a range of trade agreements, it is likely that less attention will be devoted to
cases perceived as less urgent, for example South Korea in comparison with Colombia. Interviews
with members of the Labour Affairs Council in the US, for example, showed that little attention is
indeed devoted to the labour situation in South Korea. In Table 1 the scope of consultation
mechanisms is classed as either specific (+) or broad (-).
The third criterion, accountability, concerns the degree to which the comments and criticisms of
civil society representatives find their way into the policy process. Accountability depends on
whether the outcomes of the mechanism are defined (in the form of resolutions or
recommendations) and on the extent to which the Parties are obliged to take their views into
account. Muguruza (2002) suggests that accountability may be enhanced if there is a formal feedback
mechanism by which the Parties remit information on how the outcomes of the mechanisms have
Global Labour Journal, 2015, 6(2), Page 225
been used (or not). In order to influence the policy process, transparent and accountable structures
to channel input and receive feedback have to be put in place (ECDPM, 2011). If participants feel
that their views are not taken into account by the respective governments, satisfaction might be low
among participants, as is the case for some participants in the Civil Society Dialogue organised by
DG Trade in the EU (European Commission, 2014: 62–64), which might in turn lead to
‘consultation fatigue’ (Muguruza, 2002). In Table 1, accountability is classed as high (+), intermediate
or unclear (/), or low (-).
Table 1 presents a qualitative comparison of the EU and US approaches. For the de jure
categories, scoring is based on an assessment of the legal texts of the agreements. For the de facto
categories, addressing the practical functioning of the mechanism, scoring is based on the analysis of
meeting documents, rules of procedure (where these exist) and interviews. Note that the domestic
mechanisms only refer to those established in the US and the EU.
Table 1: Comparative Overview of the Monitoring Mechanisms
Domestic mechanism Transnational mechanism
Institutionalisation Scope Accountability Institutionalisation Scope Accountability
US De
j
ure
- - / / + /
De
facto
+ - / - + -
EU De
jure
+ + / / + /
De
facto
+ + + / + +
As the table shows, the EU domestic mechanism is more firmly institutionalised de jure, within
the text of the agreement. However, when it comes to de facto implementation, both the US and the
EU domestic mechanisms demonstrate a high level of institutionalisation. However, implementation
of the US mechanism remains dependent on the political constellation in place at any given moment.
In terms of the scope of each mechanism, the US domestic mechanism is very broad. The labour
aspects of all US trade agreements fall within the remit of the National Advisory Committee. In the
EU case, by contrast, the domestic mechanism is focused specifically on the agreement with South
Korea. While the text of both the EU and US agreements is silent on the question of government
accountability to the consultation mechanisms, in the EU some guidance is provided by
supplementary rules agreed upon after the entry into force of the agreement itself.
Overall, then, it seems that some of the criteria are (partly) met with regard to the domestic
mechanisms. However, the situation is different with the transnational mechanisms.
Institutionalisation is quite low. The meetings are very focused with regard to their content, but they
are not held on a regular basis, especially in the case of the US. In the EU case the government is in
practice somewhat accountable towards the transnational mechanism.
Global Labour Journal, 2015, 6(2), Page 226
2.2 The Korus Agreement
The domestic mechanism: The National Advisory Committee
The language establishing the US domestic mechanism is as follows: ‘Each Party may convene
a national labor advisory committee comprising members of its public, including representatives of
its labor and business organizations and other persons, to advise it on the implementation of this
Chapter.’9 This provision for a National Advisory Committee (NAC) is carried over in almost
identical form from one US trade agreement to the next using text that first appeared in the
NAALC.10
The NAC is composed of three groups with four people in each group: public representatives
(in practice academics), labour representatives and business representatives. Meetings are also
attended by staff of the Department of Labour and/or the US Trade Representative’s Office. As
such, the NAC is one of the few forums in which a tripartite dialogue takes place (interviews 5, 10).
Representatives are appointed for a fixed term and recently most of them were reappointed for a
second term.
The NAC was dormant at the time of the Bush administration, but was revived under
Democratic leadership in 2011. This is no surprise given that the Democratic Party has always had
more attention for labour issues in trade than its Republican counterpart. As such, its
institutionalisation depends to a large extent on the political context. Since 2011 it has met at regular
intervals, with six meetings in total lasting about four hours each. Thus institutionalisation is high for
the moment. The NAC Charter specifies that the NAC should oversee the labour provisions of the
following agreements: NAALC, Singapore, Chile, Australia, Morocco, Central America and the
Dominican Republic, Bahrain, Oman, Peru, Colombia, South Korea and Panama (U.S. Department
of Labor, n.d.). The implementation of the labour provisions of all of these agreements is discussed
in this forum and little attention seems to be paid to the South Korean case. There seems to be
much more concern about, for example, the agreement with Colombia or trade relations with
Guatemala. What is more, most NAC members are more specialised in Central and Latin America
(interview 3). For example, when asked about the establishment of a domestic mechanism in South
Korea for the monitoring of the social provisions of the KORUS agreement, interviewees in the US
generally replied that they were not aware of such a mechanism (interviews 2, 3, 4). None of the
interviewees working on this topic were aware of the presence or absence of such a mechanism on
the South Korean side.
The minutes of every meeting are kept, but the NAC does not serve as a way to influence the
dialogue between governments on labour issues (interview 5). As one interviewee put it, it is more of
an advisory committee with a small ‘a’ (interview 3). While the US Department of Labour seems
open to receiving advice, it appears to be is difficult for the NAC to make specific recommendations
because of the conflicting views of labour and business representatives (interview 3). In this regard
the same interviewee argued that a recurrent theme within the NAC is whether the burden should be
put on companies (as the labour side argues) or on governments (as business argues). Indeed, a
business representative argued that the biggest weakness is the lack of administrative capacity of
governments (interview 5). These entrenched differences of view tend to lead to ‘lowest common
denominator’ resolutions. An additional problem is that the role of the NAC is to advise the
Department of Labour. The Department in turn has to negotiate a policy position with the US
Trade Representative’s office, whose approach is embedded in the broader strategy of the US State
Department.
Global Labour Journal, 2015, 6(2), Page 227
The transnational mechanism: The public sessions of the Labour Affairs Council
The US–South Korea agreement envisages a Labour Affairs Council comprising cabinet-level
or equivalent representatives of both Parties.11 Every meeting of this Council is supposed to include
a meeting with the public to discuss implementation matters relating to the labour agreement. The
composition of ‘the public’ in this case is not specified.
Only one meeting of the Ministers of Labour has so far taken place, in March 2013 in
Washington. Only very limited documentation of this meeting is available. There is no fixed
participation given that any interested person can register for the meeting and seats are given on a
‘first come, first served’ basis. Given that no funding is available to pay for the participation of
South Korean civil society representatives, there is no true ‘transnational’ civil society dialogue.
However a South Korean union representative reported that they had been informed about the
outcomes of the meeting by a US counterpart (interview 1).
While US labour organisations provide funding for some trade unions to come to the US to
meet with the administration and with members of Congress, this money is not spent for the public
sessions. This is telling for the expectation of effectiveness of these meetings. During these public
meetings government statements are mostly very broad and formalistic. Although it is thought to be
positive that Ministers of Labour (or their representatives) have to face the public, those taking part
in the meeting are treated as an audience and not as people giving advice to the governments. They
can ask questions, but the responses tend to be rather vague and as such the mechanism does not
seem to be conducive to any improvement of the labour situation (interview 6). Given that no
minutes are taken it is hard to hold the governments accountable to the advice they receive from
civil society. It is also telling that an interviewee from the US Department of Labour was quite
unaware of these meetings.
2.3 The EU–South Korea Agreement
The domestic mechanism: The Domestic Advisory Group
The agreement with South Korea foresees that the Parties shall establish a Domestic Advisory
Group (DAG) on sustainable development (specified as the environment and labour) whose task is
to advise on the implementation of the sustainable development chapter. Members of the group
should be ‘independent representative organisations of civil society in a balanced representation of
environment, labour and business organisations as well as other relevant stakeholders’.12 Nothing is
said about the way in which they are to be selected. In practice the European DAG in the Korea
agreement consists of 14 members.13 Tom Jenkins of the European Trade Union Confederation is
the chair of the European DAG of the Korea agreement.14 No environmental organisations are part
of the DAG. However, concerning labour, the DAG includes representative organisations. The first
meetings of the DAG and the Civil Society Forum (CSF – the transnational mechanism) were
mostly concerned with setting up the Rules of Procedure. As was the case for the NAC in the US, in
the beginning it was not very clear what the overall role of the DAG would be and what role the
participants were expected to play (interview 8).
While the DAG provisions are quite precise, it is questionable whether the inclusion of both
labour and environment in the same mechanism enhances the chances for an improvement of
labour standards. Although these issues can often be intertwined, reluctant governments might use
the forum to direct discussions to focus only on environmental issues. In practice the European side
of the DAG is quite institutionalised. It has decided to meet four times a year (Altintzis, 2013).
Concerning accountability, it is foreseen in the agreement that two other parts of the
institutional machinery, the Committee on Trade and Sustainable Development15 (TSDC) and the
Panel of Experts,16 can or should seek the advice of the DAG, but it is not specified to what extent
Global Labour Journal, 2015, 6(2), Page 228
they are required to reflect this advice in their final report. Nonetheless the TSDC has in practice
agreed to consider all communications it receives from the DAG and from the CSF and also that in
cases where it adopts operating conclusions it will communicate these to the DAGs.
Since its establishment, the DAG has produced two opinions – one on the Green Economy
(Domestic Advisory Group under the EU–Korea FTA, 2013b) and one on the ILO Conventions
(Domestic Advisory Group under the EU–Korea FTA, 2013a). So the output of the EU domestic
mechanism is more concrete than is the case in the US. These opinions have gone to the European
Commission and the Korean government. In addition, the chair of the DAG wrote to then Trade
Commissioner De Gucht to express the DAG’s concern about the violation of labour rights in
Korea (Jenkins, 2014). While the majority of the European DAG supported this move, the
employers’ side believed it may have exceeded the role of the DAG. In his reply, De Gucht thanked
the European DAG for its efforts in this regard and mentions that the European Commission
would try to organise the CTSD in 2014 instead of early 2015 to ‘ensure effective and timely
dialogue’. Some DAG participants also reported that although they believe that the European
Commission does bring up DAG issues in its dialogue with the Korean government, it does not
have enough leverage to have an impact (interviews 7, 8).
The transnational mechanism: The Civil Society Forum
Recent EU trade agreements provide for the establishment of a CSF in which civil society
representatives of both parties can meet.17 In the Korean case, the DAG of each Party selects
representatives from among its members as a balanced delegation to the CSF. Normally, the CSF is
composed exclusively of the members of the DAG of both sides but the rules of procedure also
allow for observers to attend the meetings of the CSF in order to reflect the diversity of civil society
of both Parties. The possibility of holding this kind of ‘open meeting’ parallels the US practice to a
certain extent. However, attendees must be nominated by a DAG and accepted by the two co-chairs
as well as paying their own expenses. The composition of the Korean DAG has been fiercely
criticised by the European DAG because ‘… the Korean DAG – except for one or two members –
was supportive of the government’ (ETUC, 2013). Indeed, most members of this DAG are Korean
professors who are or have been affiliated with the Korean government.18 In response to these
criticisms, the Koreans stated that they believe that professors who have specialist knowledge and a
neutral view can be considered to be independent civil society representatives. As one interviewee
put it, ‘part of the problem is that different parts of the world have a different perception of what
civil society is’ (interview 9). The European side reiterated that it believed that the participation of
the trade union KCTU was needed for the Korean side to be representative. Because of this and
other pressure the Korean DAG was reorganised in 2014 and now also includes the KCTU.
According to the trade agreement, the CSF is supposed to meet once a year. However, the
decision of the Council, which is a general institution of the EU composed of the member states,
specifies that an extraordinary meeting may be held if one of the DAGs requests it (Council, 2012).
The EU–Korea CSF seems to be quite institutionalised as it has already met two times (as foreseen
by the agreement): the first time in June 2012 in Brussels and the second time in September 2013 in
Seoul. However, no meeting was reported in 2014. Institutionalisation is potentially high given that
the DAGs each have their own secretariat (for the European side, the European Economic and
Social Committee) that will assist in the daily functioning of the DAG and the preparation of CSF
meetings.
So while the Europeans see it as positive that participation is fixed, especially labour
representatives in South Korea see the need for a more open meeting so that ‘true’ civil society can
participate. Indeed, by putting some pressure South Korea agreed to a more open meeting. Apart
from that, the Korean side of the CSF did not want the ILO being present. On this issue there was a
Global Labour Journal, 2015, 6(2), Page 229
clear division among the South Korean members, with trade union representatives agreeing to it
while academics represented the South Korean government’s point of view. Despite these problems,
European participants in the CSF reported that the second session of the Forum improved
significantly on the first, with a better common statement and more constructive atmosphere.
The practical functioning of the CSF is specified in its own rules of procedure (Civil Society
Forum under the EU–Korea FTA, 2013). Here the possible impact of the CSF is broadened in the
sense that it is intended to play an advisory role for other bodies established in the trade agreement
by supporting them with expertise and knowledge. As mentioned before, the CTSD also agreed to
take communications of the DAG as well as of the CSF into account. Concerning these
communications, one frustration for European participants was that the opinion that they had
written on the labour rights situation was diluted after discussion with their Korean counterparts,
who did not want to make any reference to the ILO.
For CSF members, the costs of participation are borne by the Parties. Meetings alternate
between Brussels and Seoul, and the costs of organising each meeting are met by the host country.
As such the civil society dialogue truly has a transnational character.
3
3. Conclusions
While these mechanisms (especially in the European case) are still very much in the process of
being developed, we can draw some tentative conclusions about their functioning. First of all, there
seem to be advantages as well as disadvantages associated with mechanisms with a clearly
circumscribed scope. Although agreement-specific mechanisms ensure that every agreement is
discussed, it might become a challenge for the EU to find enough representatives to take part in all
these meetings. This problem might be less pressing for NGOs, but more so for unions given that
international union (con)federations are fewer and have less staff. In the US case, on the other hand,
where the focus is quite broad, it is questionable whether enough time can be devoted to each of the
agreements, given that the NAC has to deal with more than ten of these.
Second, the fixed participation of a limited number of representatives seems to be a
precondition for participants to get to know each other and to determine and understand the role of
the mechanism they are in. However, this implies that participants must be selected and in some
cases (such as the CSF), it might be advisable for governments to avoid selection in favour of
inviting the participation of all interested organisations. For example, the members proposed by one
government might not seem representative from the point of view of the other. We saw above how
this problem arose in the context of the Korean DAG, which initially only included one genuine
union, at least as far as this was understood by the EU. A more open workshop was organised in the
context of the CSF meeting in Korea. Nonetheless the South Korean side did not accept the ILO’s
presence there. The EU seems to have learned from this first experience and current agreements
provide for more open meetings.
Third, there is the question of funding. If the Parties do not provide funding for civil society
of both countries to meet, then it is likely that the meetings of the Labour Ministers will be one-
sided. As such these meetings do not by themselves enhance the possibility that civil society
representatives will learn from each other.
Fourth, more efforts could also be directed towards increasing the accountability of the
mechanisms. This is especially the case for the US agreements, where participants noted that they
are not sure what the Department of Labour does with their advice.
In the US case it was also found that institutionalisation very much depends on the political
constellation. Democratic administrations in the US seem to be much more in favour of making the
Global Labour Journal, 2015, 6(2), Page 230
domestic mechanism work well. During the Republican administration of Bush it was dormant. If
the mechanisms are to have an impact in the long run, continuity is important. Related to that, if the
trade agreement contains no obligation that the mechanism be established (as is the case in the US),
it is less likely to be set up, as the South Korean case shows.
Fifth, it might be a good idea for the European Commission to be more transparent on how
representatives were chosen. In the Colombia/Peru case, where similar mechanisms are set up, it has
for a very long time been unclear for organisations that applied, whether they would be chosen or
not.
Sixth, while the impact of the mechanisms on labour conditions is difficult to discern and thus
to judge, both US and EU participants thought it was useful to take part in the consultation
mechanisms. Participation permitted an exchange of views with other civil society representatives
and was an opportunity to have governments listen to them in a formal setting. However, a South
Korean participant agreed that although any mechanism was better than none, the existing structures
were insufficient to tackle labour issues because they have no enforcement power whatsoever and
also because they are embedded in the framework of a trade agreement (Interview 1).
All in all, while many problems with the implementation of these mechanisms exist, such
domestic and transnational mechanisms are vital to achieve the Decent Work objective of
promoting social dialogue, even in industrialised countries like the US where tripartite dialogue is not
very common.
NOTES
1. Please note that this study does not cover the civil society involvement in the whole
implementation process and focuses only on the promotional aspect of the implementation
via civil society consultation mechanisms. For the difference between promotional and
conditional aspects of labour norms in trade, please see the 2013 publication by the
International Institute for Labour Studies. In the US, for example, civil society has the right to
file complaints under the labour chapters of the agreements, but this mechanism cannot be
qualified as promotional given the possibility for penalties it foresees.
2. Recently also the EU–CARIFORUM Joint Consultative Committee was established with civil
society from the EU side and the side of the Caribbean countries meeting in November 2014
in Brussels. Currently the mechanisms under the EU–Colombia/Peru trade agreement are
being set up.
3. This ‘New Trade Policy for America’ in practice meant that pending US trade agreements
should include key Democratic principles, not only on labour, but also on the environment,
access to medicines and other issues. With regard to labour it stipulated that countries should
uphold in their law and practice the obligations of the 1998 ILO Declaration (Inside U.S.
Trade, 2007b).
4. These included two side letters to the agreement: one on patents and one on environmental
provisions.
5. This US institution, officially called ‘Labor Advisory Committee for Trade Negotiations and
Trade Policy’, provides advice to the Secretary of Labour and the US Trade Representative.
Also, at the conclusion of negotiations of each agreement it provides a report to Congress, the
Office of the United States Trade Representative and to the President.
Global Labour Journal, 2015, 6(2), Page 231
6. The programme of the hearing can be found at
http://www.europarl.europa.eu/document/activities/cont/201006/20100611ATT75961/201
00611ATT75961EN.pdf. Most of the speakers were business representatives.
7. The European (especially the Italian) automobile sector and the electronic industries were very
much opposed to the agreement.
8. Within this article references will be made to specific interviews conducted by the author in
Washington, Brussels or via Skype. However, given that only few people take part in the
mechanism and given that they were promised anonymity, the author at the end only provides
the place and date of the interview.
9. See art. 17.5.7 in the US–Peru and US–Colombia agreement.
10. See art. 17. Aaronson and Zimmerman (2008: 173) point to the fact that the environmental
side agreement of NAFTA set up an institutionalized Joint Public Advisory Committee, which
comprises five citizens for each country. According to the website of the committee, the
citizens represent a microcosm of the public in the three countries. For more information visit
http://www.cec.org/Page.asp?PageID=1226&SiteNodeID=208&AA_SiteLanguageID=1.
11. See art. 19.5.2. The agreements mention this should happen unless the Council decides
otherwise.
12. Art. 13.12.5.
13. It consists of three members from the EESC, four business organizations, three labour
organizations and four non-governmental organizations (NGOs) (consisting of a farmer
group, a group on human rights, one on animal rights, and one on development and
humanitarian aid). The full list can be consulted here: http://portal.eesc.europa.eu/eu-korea-
dag/Civil-Society-Forum/Pages/Members-of-Civil-Society-Forum.aspx.
14. In this capacity he is also one of the co-chairs of the Civil Society Forum.
15. This committee has the task to oversee the implementation of the sustainable development
chapter. See art. 13.12.1-3.
16. This panel may be set up if a Party would like an issue of sustainable development to be
discussed between the Parties, after this has been insufficiently addressed in government
consultations. See art. 13.1.
17. See art. 13.13.
18. One interviewee also recalled that this has to do with the different understandings that consist
of what civil society means in different parts of the world (interview 2).
LIST OF INTERVIEWS
1. Interview South Korean side, Skype, 26 August 2014
2. Interview US side, Washington, 14 July 2014
3. Interview US side, Skype, 6 August 2014
4. Interview US side, Washington, 10 July 2014
5. Interview US side, Skype, 27 August 2014
6. Interview US side, Washington, 11 July 2014
7. Interview EU side, Brussels, 22 July 2014
Global Labour Journal, 2015, 6(2), Page 232
8. Interview EU side, Brussels, 19 June 2014
9. Interview EU side, Brussels, 11 March 2014
10. Interview US side, Skype, 24 July 2014
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... ISDS mechanisms "grant corporations standing to bring legal action directly against signatory governments in order to guarantee the rights and protections they are afforded within the agreements", thus privileging the interests of transnational corporations over those of other actors. 14 ...
... Corporate actors, however, have much narrower interests and fewer disincentives to initiate legal challenges. 14 ...
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The purpose of this document is to raise a debate among the Vice- Ministers of Trade of the hemispheric countries regarding the participation of civil society in the process of designing and implementing trade policies. The European case of consultations between civil society and the European Commission is the main topic of this document.
Article
Globalization has led states and civil society groups to seek new and more effective governance in international labor law. The United States and Canada have each concluded a path-breaking, controversial and still-evolving series of international trade-related labor agreements with their trading partners. These agreements, and ongoing critiques that continue to influence their development, have been shaped by a particular model of governance. That model seeks, in the interests of effectiveness, a set of sharply defined rules and court-like adjudication processes directly linked to economic sanctions. The potential effectiveness of this governance model has received no systematic evaluation. This article undertakes the first such assessment. Drawing on game theory, it first sets out a stylized picture of the likely interests of industrialized and developing economy states in international labor standards. It then assesses, in the light of international relations theory and empirical research into the effectiveness of international labor law and analogous regimes, the potential capacity of competing models of governance to exert required international influence. It examines in a similar manner the particular challenges for international governance posed by the political, policy and administrative complexity of raising labor standards through the necessary sustained state interventions. It concludes that the new international trade and labor agreements offer important potential gains in effectiveness for international labor law. However, in their present form these agreements are unlikely to lead to widespread improvements in respect for even the most fundamental of labor standards. This is because they rely too heavily on a complaints adjudication model of governance. The influence of adjudication is likely to be too episodic, too uninformed, too lacking in strategic focus, too divisive and too easily contained to handle the problem of raising labor standards on its own, or even as the principal strategy within a more complete toolkit of approaches. The paper then points towards an alternative and more promising approach described as Leveraged Deliberative Cooperation, grounded in New Governance theory and experience under the United States Cambodia Textiles Agreement.