Human rights, core labour standards and the search for a legal basis for a trade-labour linkage in the multilateral trade regime of the World Trade Organisation

• Published in: Law, democracy & development Vol. 18; no. 1; pp. 240 - 263
• Main Authors: Osode, Patrick C., Warikandwa, Tapiwa V.
• Format: Journal Article
• Language: English; Portuguese
• Published: Cape Town University of the Western Cape 01.01.2014; University of Western Cape, Faculty of Law; University of the Western Cape, Faculty of Law
• Subjects: Developing countries; Human rights; Humanities, Multidisciplinary; International law; International trade; Labor standards; Law; LDCs
• ISSN: 2077-4907; 2077-4907
• DOI: 10.4314/ldd.v18i1.12

Linking the right to engage in international trade to respect for human rights has emerged as one of the most controversial debates in contemporary international law discourses. Opponents of such a linkage point to inequalities in levels of development as a compelling reason for excluding a trade-labour linkage from the legal framework of the World Trade Organisation (WTO). In an era in which countries are vigorously competing for investment by multinational corporations, there is growing fear of a "race to the bottom" given that core labour standards are arguably being lowered to attract investors. While developing countries are being pressured by champions of private sector interests to neglect core labour standards in order to lure investors, democratic societies generally regard substantial compliance with core labour standards as a plausible social policy. This article explores the contemporary debates regarding a need to establish a trade-labour linkage in the WTO on the basis that core labour standards are human rights. This subject has become more prominent and assumed greater urgency given that recent data on governance and human rights protection reveals that developing countries are generally struggling to protect workers' rights. The article is divided into five sections. The first section introduces the rationale behind proposals to incorporate a trade-labour linkage clause in the WTO's legal framework. The immediately following section outlines some of the notable cases that suggest a negative attitude towards the protection of core labour standards in trade based on evidence from some developing countries. The third section then explores the need to protect core labour standards in trade. In this regard, an analysis of the positivist, normative and instrumentalist approaches to protecting core labour standards as human rights is undertaken. That analysis is then followed by an examination of the WTO's human rights commitments. The last section presents conclusions on strengthening proposals for a trade-labour linkage in the WTO's legal framework.