Over the past decade, trade lawyers and legal researchers have had to take a crash course in international labor law and the so-called ‘sustainable development’ framework. Trade bans across the Atlantic punish governments and corporations for engaging in forced labor. The European Union (EU) recently revised its trade agenda to ensure that commitments to trade agreements with sustainable development provisions are enforceable through sanctions. The United States adopted a ‘worker-centered’ trade policy foregrounding international labor law, the International Labor Organization (ILO), and conceptions of workplace democracy, choice, and voice. The trade and labor linkage, long the source of dispute, is apparently with us to stay, with its attendant implications for trade, political relationships, and international economic law. Namely, who establishes the rules? Governments? International organizations? Civil society? And who decides whether and how those rules are violated?
It is against this evolving backdrop that two incredibly helpful resources have emerged. The first resource, Trade, Labour, and Sustainable Development: Leaving No One in the World of Work Behind, written by longtime labor law expert Tonia Novitz, focuses on global governance and EU trade instruments. Novitz offers important lessons on the origins of the trade and labor nexus, the meaning of the fundamental labor rights that are increasingly regulated in trade agreements, and the implications of labor rights violations for deliberative democracy and the economy of a global supply chain world. The second resource, The International Defense of Workers, written by the late Kevin J. Middlebrook, puts Novitz's theoretical and conceptual lessons to work. His extraordinarily well-researched, deep dive into US trade policy and the history, negotiations, and political economy of the United States–Mexico–Canada Agreement (USMCA) reveal the complexities, drawbacks, and promises of labor rights governance in trade. His views sometimes complement and sometimes stand starkly against Novitz's, ensuring that readers get diverse perspectives about who designs labor provisions, who benefits from them, and what the future of trade and labor may entail.
This book review discusses each, highlighting, where appropriate, how the two interact. It begins with Novitz's contribution, which views labor rights governance holistically, albeit with an EU slant. It then turns to Middlebrook's contribution to test Novitz's hypothesis that the USMCA represents a turn in trade and labor governance to the benefit of deliberative democracy and vulnerable communities.
Focusing on events like the COVID-19 pandemic and the growing income disparities across the world, Novitz begins her introduction by reminding us that labor standards and protections affect us all – not just workers along global supply chains. The failure of international institutions to regulate and protect workers has ‘sparked rebellion’ within countries, with voters increasingly electing populist leaders with promises of higher borders and greater trade protections.Footnote 1 If international labor law ever existed in a silo, Novitz argues, its nexus to trade is now cemented. When labor law fails, and workers suffer, trade agreements stall with declining political support. When trade instruments fail to protect workers, production along supply chains stalls.
How did we get here? As Novitz shows, labor protections in trade emerged gradually after the Second World War when trade policy concerns centered on fair competition and eradicating unfair advantages. Despite the clear connection between labor standards governing wages, hours, benefits, and other conditions of production, States struggled to agree to regulate labor in trade organizations. The original Havana Charter expressly discussed labor standards, but those references were struck in the Marrakesh Agreement and, since then, have remained a source of contention in discussions around the General Agreement on Tariffs and Trade 1948 (GATT) and the World Trade Organization (WTO).
Rather than anchor her analysis on WTO or ILO jurisprudence, Novitz focuses on the United Nations Sustainable Development Goals (SDGs) in chapter 2 to show how ‘decent work’ interlinks with trade from a global governance perspective. By centering her analysis on global governance, Novitz self-consciously distinguishes her approach from Dani Rodrik and others who call for a return to the ‘nation state’.Footnote 2 As the world seems to be turning more nationalist, Novitz urges more attention be placed on the ‘synergies and tensions’ in labor rights and trade and global ‘institutions which can address these [tensions] and debate them openly and responsibly’.Footnote 3 Otherwise, one country's failure to adhere to labor rights – for instance, apparel assembly in Bangladesh – will inevitably affect labor markets in other countries. The COVID-19 pandemic caused shocks throughout global supply chains when workers fell ill without appropriate workplace protections or protested their unsafe working conditions by refusing to work. In today's globalized and interconnected world economy, we cannot afford to be nationalists.
So long as international institutions such as the WTO, which hold the keys to Novitz's global governance, are facing a legitimacy crisis, the solution is not to turn against them but inject them with greater transparency, democratic deliberation, and pluralism. Deliberations cannot resolve global tensions if they do not ‘offer meaningful representation’, including the voices of marginalized communities, such as workers, women, and migrants.Footnote 4 She charges that the so-called ‘worker-centered’ trade policy offers ‘little scope at present for inclusive representation of the world's most vulnerable workers’, particularly those in developing countries.Footnote 5
In chapters 3 and 4, Novitz assesses how the ILO, International Monetary Fund (IMF), World Bank, and WTO fare from the perspective of deliberative democracy and sustainability. By title alone, the ILO would presumably emerge victorious in this unlikely competition between rights-based and international economic institutions. However, in chapter 3, Novitz details how the organization is weakened by the same deliberative democratic features that she calls for in trade and labor governance. A 2008 policy initiative that was supposed to modernize the organization and strengthen its capacity to help its members digressed into an opportunity for the ILO's employer members – one-third of the ILO's unique tripartite constituency – to build their power through internal discussions. Four years later, in 2012, the ILO's employer members used that power to effectively veto the ILO's supervisory functions that year, paralyzing the organization's most important mandate. Notwithstanding, the ILO still managed to get the term ‘decent work’ included in the UN SDGs, thus keeping labor rights relevant to the broader issue of development and trade, even while ducking sensitive topics such as whether trade should protect the fundamental right of workers to strike.
Given the ‘limits of ILO competence’Footnote 6 in trade, chapter 4 reviews the potential for international economic institutions – the IMF, World Bank, and WTO – to advance sustainability objectives in trade. Novitz views those institutions, as I do,Footnote 7 as having contributed to ‘structural inequalities and impediments to workers' well-being and flourishing’ because they continue to exclude workers' voices.Footnote 8 That exclusion seems a natural consequence for Bretton Woods institutions that prioritize capital. By contrast, the WTO regularly establishes ‘trade norms that affect the livelihoods and modes of hire of those in the world of work, including the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), which affects workers' health and safety, and the Agreement on Technical Barriers to Trade (TBT)’.Footnote 9 Noting the residual exclusion of human rights at the WTO, along with the organization's current stalemate, Novitz endorses calls for ‘enhanced democratic participation in setting WTO objectives’ to strengthen perceptions of legitimacy and political support.Footnote 10 Currently, the WTO tolerates deliberative democracy by permitting trade partners like the European Union and the United States to condition their respective trade preference programs on respect for freedom of association.
In chapter 5, Novitz uses the EU as a case study because it is ‘one of the leading culprits promoting’ free trade agreements (FTAs).Footnote 11 Of particular relevance to the trade-labor nexus is the inclusion of trade and sustainable development (TSD) chapters in EU FTAs, which commit the parties to the ILO's fundamental labor principles and conventions and create Domestic Advisory Groups (DAGs) comprising civil society organizations to engage with the EU on FTA implementation. Of key importance to trade officials and lawyers is her detailed analysis of the EU-Korea FTA Expert Panel Report, which is the second state-to-state dispute that has gone to a panel on a labor issue, the other being the US–Dominican Republic–Central American Free Trade Agreement (CAFTA-DR) dispute (‘Guatemala’).
A notable distinction between the two cases concerns the panel's approach to scope and jurisdiction. The Guatemala panel dismissed the US complaints regarding Guatemala's violations of freedom of association because it found that the United States failed to demonstrate that the alleged misconduct occurred ‘in a manner affecting trade’. The labor provisions in the dispute differed, but, more importantly, the panel found that the EU–Korea FTA had a sustainable development framework, rendering trade and labor mutually reinforcing.
The distinction raises a number of questions, including whether, as Novitz suggests, a trade agreement with a ‘sustainable development agenda [can be] used to confer greater protection for labour standards than’ trade agreements with labor provisions but no such agenda.Footnote 12 To increase the effectiveness of EU agreements and their sustainable development agendas, Novitz somewhat curiously draws inspiration from a trade agreement without an express sustainable development agenda: the USMCA. She argues that the EU should embrace the approach in the USMCA, which established a facility-specific labor rapid response mechanism (‘RRM’) permitting sanctions levied against individual facilities rather than by industry. This topic, one of the few areas where Novitz and I disagree,Footnote 13 is the focus of Middlebrook's book and will be taken up below.
Chapter 6 shifts the lens to global supply chains, noting that ‘a more realistic view of the contemporary global economy is that trade may be more concerned with competition between corporate entities which operate in complex ways across national borders’.Footnote 14 It asks whether a sustainable development framework could contribute to the currently fragmented, patchworked body of rules regulating corporate conduct along global supply chains. While the ILO's international platform and legitimacy render it a likely champion, Novitz notes that the organization tends to focus on individual country violations ‘rather than in a holistic way’ and would thus struggle to address the power asymmetries that lead to labor rights abuses along supply chains.Footnote 15 Despite the flaws in the sustainability framework in trade agreements, namely the institutional disorganization and obstacles to deliberative democracy, Novitz concludes with ‘glimmers of hope’, including the use of FTAs to elevate the voices of ‘the most vulnerable’, including workers in third countries.Footnote 16
Where Tonia Novitz's book leaves off – discouragement regarding the lack of legitimacy and voice in regulating labor standards and trade and cautious optimism over the USMCA's more deliberative approach – Kevin J. Middlebrook's picks up. Middlebrook's book is engaging and amusing. You could read it in an office or on the beach (although, at 570 pages, you may need a Kindle). While the title suggests a sweeping review of labor rights in trade agreements, as Novitz's book offers, it is instead a fascination, behind-the-scenes take on the USMCA and its heralded RRM. Middlebrook's account, in some ways, reinforces Novitz's optimism that there is a path forward in labor standards in trade. At the same time, however, his insight suggests that the USMCA and its enforcement tools are no more democratic or worker-centered than the institutions and agreements that have thus far garnered substantial criticism (including from Novitz).
Like Novitz, Middlebrook's first chapter lays out the development of labor rights in trade and the evolving objectives reconciling traditional trade concerns with the labor movement's growing political power. He, too, gives the ILO a central role in the trade and labor nexus, given the organization's responsibility to craft and supervise the labor standards frequently incorporated into FTAs. And like Novitz, Middlebrook is interested in how civil society helps shape the trade agenda through expression and voice. For Middlebrook, the query centers on how domestic sociopolitical forces, versus state sovereignty, contribute to compliance with FTA-linked labor obligations and whether contributions ‘constitute an efficacious means of defending workers' rights internationally’.Footnote 17 As one of the experts who enjoyed an inside seat to the USMCA negotiations and aftermath, Middlebrook was well positioned to make that assessment. And he does not disappoint.
Chapters 2 through 5 focus on the role of the US labor movement in shaping US trade policy. Chapter 2 discusses the Generalized System of Preferences (GSP) and details how a US labor organization, the AFL-CIO, took advantage of the GSP petition process to raise awareness of human rights abuses in beneficiary countries. Chapter 3 describes how unions and politicians worked together to negotiate the North American Free Trade Agreement (NAFTA) labor rights provisions. It is here that Middlebrook's insider knowledge and anecdotes shine. He details internal discussions between high-level officials in the United States, as well as within Mexico and Canada. Those interested in the origins of US trade policy will benefit greatly from his account of the conversations between key negotiators and politicians, coupled with meticulous data concerning tariffs and economic drivers for labor rights regulations.
Chapter 4 oversells itself as ‘the first systemic assessment of the North American Agreement on Labor Cooperation (NAALC)’Footnote 18 (readers interested in the NAALC would benefit from reading Professor Lance Compa's insightful and voluminous analysesFootnote 19) but offers great insight into the sociopolitical actors and pressures involved in negotiating the side agreement. This behemoth chapter, which could have been a standalone book, details the labor cases that arose under the NAALC and their ‘very limited policy consequences’.Footnote 20 Most of the submissions ‘did little either to correct the specific labor rights violations that gave rise to public communications or to alter Mexico's established model of state-labor relations’.Footnote 21
In chapter 5, Middlebrook argues that the NAALC's ‘legacies’ influenced subsequent US FTAs,Footnote 22 including the Trans-Pacific Partnership Agreement (TPP). This part zooms out of the NAFTA context. It explains the intricacies of US interagency work on trade and labor and efforts by organized labor to raise complaints against trade partner countries under the labor provisions of other US FTAs, noting that as opposed to the NAALC experience, the US government accepted ‘all but one of the U.S. FTA labor rights complaints it received between 2008 and 2016’.
Like Novitz, Middlebrooks describes the Guatemala case, this time with detailed information about the submission, public reporting, and discussions between the United States and Guatemalan governments. Middlebrook then turns to the TPP negotiations, characterizing the three bilateral consistency plans between the United States and Brunei, Malaysia, and Vietnam as an ‘intrusive approach regarding countries with notoriously poor labor rights’,Footnote 23 seemingly sympathizing with Mexico's refusal to enter into a similar side agreement. Responding to intense pressure, the Mexican government began to work with the US government to amend its labor justice and legal systems. This section is critically important to scholars and practitioners interested in the USMCA's labor provisions. Contrary to common assumptions, Middlebrook shows that Mexico's labor law reforms were not designed with an eye to NAFTA renegotiations; they were carried out under the auspice of the TPP, heavily influenced by active US government interventions.
Middlebrook devotes chapter 6 to the NAFTA renegotiations with a surprising degree of internal insight. He notes that USMCA's eventual annex ‘wrote into an international agreement the key reforms that the U.S. government labor officials had negotiated with their Mexican counterparts during the [TPP] negotiations but which the Mexican government had then sought to elude’.Footnote 24 Much of the chapter exposes discussions among US members of Congress and Mexican officials and how many of Mexico's labor law reforms were proposed by the United States, sold to Mexican officials and citizens as necessary responses ‘to a US demand’.Footnote 25 In turn, the Mexican government pledged to adopt a ‘joint evaluation mechanism’ but strongly opposed a US proposal for plant-level inspections.Footnote 26
While the United States ultimately succeeded in including the RRM in the USMCA, Mexico successfully insisted that only RRM panels could request plant-level inspections. Describing the USMCA labor provisions, along with the RRM, in succinct detail, Middlebrook astutely notes that a footnote included in the USMCA Annex 23-A effectively ‘precluded Mexico from using the mechanism to investigate labor rights violations allegedly occurring in the United States; Mexico could only seek to enforce a binding decision already taken by US national labor authorities’.Footnote 27
Chapter 7 summarizes the evolution of labor rights provisions in US FTAs as ‘path-dependent in character’, despite efforts by civil society to shape those provisions to better protect workers in trade sectors.Footnote 28 Rather than share Novitz's cautious optimism for a more deliberative trade and labor regime, Middlebrook concludes that ‘the international defense of labor rights remains fundamentally conditioned (and often constrained) by state sovereignty’, thereby undermining the role of trade as ‘an efficacious strategy’ for protecting workers’ rights.Footnote 29
The RRM, specifically, reveals a significant schism in trade and labor research. Novitz shares what I consider to be the majority view that the RRM is more democratic and deliberative because it targets specific facilities and permits workers to raise complaints directly with the United States about their employer's misbehavior. Middlebrook, by contrast, views the RRM as a tool that expands ‘the scope of U.S. sovereignty leverage based on control over market access’.Footnote 30 Although labor organizations welcome it, the RRM remains vulnerable to the political decisions of the US government, and is not necessarily reflective of the voice of the vulnerable communities abused in trade relations. As Novitz reminds us, without those voices, workers' rights are not guaranteed. And without workers' rights, trade is not guaranteed. We should take notice.
