An emergent trade in services is challenging the standard application of transnational labour laws promulgated by the International Labour Organisation (ILO) and the European Union (EU). This chapter considers who benefits from this shift in orientation. It begins by considering past linkages between trade in goods and the establishment of transnational labour standards predominantly by high-income industrialised states in the North. The second part of the chapter then goes on to examine the current scope for protection of labour standards where there is trade in services, exploring a tendency towards commodification of labour in this sphere. Two specific settings are examined: the movement of natural persons under ‘mode 4’ of the General Agreement on Trade in Services (GATS) and EU ‘posted work’ which accompanies the exercise by employers of their entitlement to free movement of services between EU Member States. The scope for renegotiation of labour norms might, at least superficially, appear to open up possibilities for lower-income States to engage politically where they were once absent. This could be a turn of events which has deliberative potential and it is certainly worth exploring more fully how such renegotiation around service provision could be beneficial to developing and emerging economies in the South. However, the development benefits may be illusory. The main drivers of change appear to be higher-income States (for whom the services industry constitutes an estimated 70–80 per cent of output and employment) and multinational corporations based in the North (eager to expand service markets and utilise cheaper labour). The impoverished workers and low-income States each remain largely excluded from the benefits of trading in services.
Freedom of association emerged initially as a right of ‘citizens’ in countries of the North. Gradually, the compass of people able to claim this entitlement was extended and had profound implications for the parameters of acceptable behaviour of business and employers. The grander endeavour to promote international human rights arguably entails universality of entitlement for every human being, going beyond a claim only for a citizen of a particular State. However, the apparent imperatives of global capitalism led to a neutering of this entitlement under international law, resulting in a diminution of its efficacy and content. The chapter closes by considering the corresponding effects in domestic labour markets, namely how nationalistic forms of discrimination and exclusion can now flourish to the detriment of workers and business.
Clair Gammage and Tonia Novitz
Our introductory chapter considers the historical and contemporary relevance of sustainability to responsible trade, investment and finance, with particular reference to the United Nations Sustainable Development Goals. In so doing, we examine the complex role of the European Union as a proponent of sustainability objectives and the extent to which these aims are integrated or otherwise in the global regimes operating in respect of trade and investment. In this way, we explore the scope for Policy Coherence for Development and sustainability within contemporary international, regional and domestic legal and policy frameworks.