Sauce for the goose …

by Henry Farrell on March 13, 2007

Ted Moran and Gary Hufbauer “contemplate the unthinkable”: in the _Financial Times_; a world in which the US actually had to live up to basic International Labour Organization standards.

US congressional Democrats, led by Sandy Levin and Barney Frank, are insisting that core labour standards promoted by the United Nations’ International Labour Organisation be included in forthcoming trade agreements as part of a “grand bargain”. … An inconvenient truth poses a huge obstacle to the proposed “bargain”: US labour laws are either openly inconsistent with core ILO standards, or they could be challenged by lawyers if ILO standards trumped established statutes and long-standing interpretations. … The practical effect would be to stop US trade negotiations. Few legislators would want to subordinate huge swaths of labour law to broad principles enunciated in trade agreements. … The four ILO standards are: freedom of association and, in effect, recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the abolition, in effect, of child labour; and the elimination of discrimination in respect of employment and occupation. … The ILO lists the US with Burkina Faso, Cape Verde, Central African Republic, Djibouti, Madagascar and Niger as countries that allow the hiring of new permanent workers to replace strikers. … it is not implausible that the ILO, an arbitration panel or a federal court would declare US practice inconsistent with the ILO standard. … In the US, non-union workers have a right to vote about going on strike (in right-to-work states); there is no expedited handling of anti-union dismissal cases; and the National Labor Relations Board normally orders no more than reinstatement of the employee with back pay. … The ratification of trade agreements that allowed labour complaints crafted under ILO principles to be brought against member countries would mean that ILO standards gradually supplanted US legislation. Congress and state legislatures would find their handiwork undone by trade panels and courts wielding fines and injunctions.

There’s one part truth, and one part nonsense in all of this. What’s true (or at least highly plausible to me) is that some of the people pushing for ILO standards don’t like free trade in general, and are likely trying to plant a poison pill in future trade deals. The economic interests that support trade deals are the economic interests that tend not to be keen on the right to organize, and are likely going to be opposed to trade deals that enshrine these rights for US workers too. The nonsense is the claim that this somehow represents a weakening of US sovereignty. Both Moran and Hufbauer are fans of agreements liberalizing trade, foreign direct investments and so on. Given the swingeing practical consequences that these agreements have had for domestic institutions in the US and elsewhere (their legal consequences are often more complex), complaints that ILO standards, if they were enforced, would gradually “[supplant] US legislation” are a bit rich.

First, by Moran and Hufbauer’s standards, Congress and state legislatures have been finding their work undone by trade panels and courts for quite some time now. Second, trade deals that Congress passes, with or without labour standards, _are_ legislation; that’s why domestic US courts pay attention to them. And domestic enforcement by courts is the issue that is really at stake here; the ILO itself has no more enforcement ability in principle than does the WTO, and in practice it has much, _much_ less. This isn’t a fight over sovereignty or autonomy; it’s a fight over the broad principles under which the domestic and international economies should be organized.

It’s fair enough, given their objectives, that pro-trade people don’t want international labour standards complicating their life. But they really shouldn’t rest their objections on the principled claim that this will leach away the ability of domestic US actors to decide for themselves what to do without any reference to international standards. That’s what trade agreements are all about.



Barry 03.13.07 at 5:43 pm

Just one little correction – it’s not ‘pro-trade’; very few people are against trade. The arguments are about the conditions. As you’ve pointed out, these guys have some conditions that they like, and some that they don’t. Assuming that you’ve given a fair summary (I don’t have a subscription), they have a particular set of conditions that they don’t like, and it’s because of the effects favoring labor.


Henry 03.13.07 at 6:18 pm

In fairness, I suspect that they are less upset about the specifics of the ILO principles than the possibility that these principles might derail trade negotiations and, in particular, the renewal of fast-track. If they had been more straight-up about this, I think it would have been a much better article. So where I say “pro-trade,” think “pro-more-trade-agreements.”


Barry 03.13.07 at 6:38 pm

Possibly; of course, giving up conditins favorable to the elites might speed up things, as well – do they call for those?


Dale 03.13.07 at 7:59 pm

Maybe rather “more agreements of the sort exemplified by our current trade regimes.”
There isn’t an anti-trade movement. There isn’t a “free” trade movement. There are movements for and against our current style trade regimes.


c.l. ball 03.13.07 at 10:03 pm

It is hard to see how any of the items mentioned by M&H above would be inconsistent with ILO core principles. Banning unions would violate it, but ‘right to work’ rules would not be fundamentally inconsistent to — annoying, complicating and costly, for sure, but not inconsistent — since collective bargaining would still occur.

But including core ILO labor standards in any future US trade agreements would seem to have nil effect on WTO talks or FTAs. The WTO pledged in 1996 to act consistent with the ILO core standards; the issue is what the mechanism for addressing violations of the core should be.

It seems that M&H are playing right into fair-trade advocates hands by getting GOP ‘conservatives’ to reject fast-track with ILO on specious sovereignty grounds.


paul 03.14.07 at 12:41 am

“it’s not ‘pro-trade’; very few people are against trade.”

Actually, there are enormous, well-funded bodies which are implacably opposed to trade. Those groups probably need to be slotted somewhere into any “it’s all about the workers vs the elites” style analysis. The ability of those groups to push their agenda while having people forget their very existence is probably another useful element in modeling internal debates on trade.


just sayin 03.14.07 at 2:43 pm

“enormous, well-funded bodies which are implacably opposed to trade”?

In the US, they don’t think anyone should buy a television, an automobile (no such thing as a purely US-produced car) or a children’s toy? If such a group exists, they have certainly been well hidden. There are certainly groups that are against further liberalizing trade rules and even for tightening some. There are generally pretty wrong-headed, but none are trying to close the borders, which is what “against trade” would mean.


dave heasman 03.15.07 at 12:35 pm

“In the US, they don’t think anyone should buy a television, an automobile (no such thing as a purely US-produced car) or a children’s toy?”

No, in the US they don’t think you should buy a port facility or a utility company. If you’re a furriner.


Michael E. Sullivan 03.15.07 at 12:55 pm

What is the defense for outlawing the hiring of permanent replacements? It sounds like a law that basically says the free-association of union workers trumps the free-association of managers/capitalists, no?

IMO, if the gulf between union demands and the market clearing labor rate and standards is so wide that hiring permanent replacement for all union workers is actually profitable for a company, then the union is almost certainly being unreasonable. Such a law would allow the unions to hold the property of companies hostage at whim. Without a vast history of almost exclusively rational and beneficent unions, or a vast history of almost exclusively evil and fraudulent corporate masters, I can’t imagine how this could be considered a reasonable power to grant to unions.

Do most of the people who support this standard really think that hiring is like flipping a switch? Bosses just say ‘fire them all!” and magically productive workers appear on the floor over the next few weeks without a massive and incredibly expensive recruitment, screening and training effort that probably ends up with a signficantly less productive workforce for a year or more?

Many people, probably including the authors, are in fact, strongly opposed to that plank of the ILO on principle, and I agree with them. Whether it’s worth sinking trade deals over, I’m not totally clear on, but it’s absolutely clear to me that adopting that standard is a negative, and a pretty significant one.

The problem in many countries (and not really in the US, except in places like Saipan) is the way corporations are let free to or even abetted in wholesale intimidation of workers that violates legimate free-association and bargaining rights. Those rights ought to be enforced by the government. But the idea that right to strike implies a right to hold the plant hostage to any demand is the kind of marxist nonsense we ought to be beyond at this point, no?

If you’re going to restrict the hiring of permanent replacements in response to a strike, then at a minimum, there would need to be some kind of arbitration board or court of appeal in cases where the union is completely unreasonable.


Doddle 03.16.07 at 1:54 am

Only neoliberals are so insistent on getting beyond what they regard as marxist nonsense. That is so 80s.

The major exercise of power in a strike is to withhold labor. Allowing employers a freer hand in hiring replacement workers makes a strike little more than a collective quit on the part of striking workers.

While it varies by industry and business, employers rarely experience so much heartburn over replacing their workers especially if the effort extends managerial control over work even if their is a momentary increase in costs or loss of productivity.

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