Edited by Sarah Joseph, David Kinley and Jeff Waincymer
Chapter 10: The WTO and Labor Rights: Strategies of Linkage
Chantal Thomas 1. INTRODUCTION While the Members of the World Trade Organization (‘WTO’) have yet to adopt affirmative labor obligations, the link between trade and labor has been pressed in much academic and policy discourse.1 The judicial body of the WTO has been called on to identify some of the contours of appropriate linkage between such ‘nontrade’ issues and WTO rules in a series of closely watched disputes. The holdings of these cases have shifted since the WTO’s establishment in 1995, away from a deep suspicion about the propriety of linking trade with nontrade issues, and towards a nuanced view that accepts the validity of linkage as long as it meets certain formal parameters. Some have applauded this shift, while others have excoriated it. As the shape of WTO jurisprudence on linkage has shifted, calls for resolution through political negotiations have increased. Some perceive a ‘legislative’ solution to offer greater legitimacy because it would represent a more ‘democratic’ solution negotiated by the entire membership, rather than adjudicated by a panel of judges to resolve a dispute between particular members. Yet political negotiations are fraught with a host of separate problems. What might be called the ‘decision costs’ of a legislative solution are high, possibly prohibitively so.2 A knotty problem arises for those concerned with linkage: there 1 See generally Jagdish Bhagwati and Robert E Hudec (eds), Fair Trade and Harmonization: Prerequisites for Free Trade? (MIT Press, Cambridge, 1996); Symposium, ‘Linkage as Phenomenon: An Interdisciplinary Approach’ (1998) 19 University of Pennsylvania...
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