Through the evolution of international trade agreements, the conceptual boundaries of ‘trade’ have expanded beyond the simple movement of goods across national borders to a matter of common economic governance among countries. In particular labor standards have long been a controversial issue in international trade. The linkage between trade and labor standards is expected to emerge as an important trade issue in the future. Internationally recognized labor standards such as those adopted by the International Labor Organization (ILO) have been incorporated into FTAs, and the level of protection of labour rights has been enhanced significantly with respect to both substantive and procedural FTA provisions. Further, there have been a couple of cases where a Party’s failure of FTA labour obligations was referred to judicial review under FTA dispute settlement procedures.
This study examines the trade-labour linkage in three main aspects. Firstly, the most traditional approach of linking trade and labour standard has been to improve labour standards in trading partners through bilateral and plurilateral trade agreements including FTAs. This trend is in line with the recent increase in litigation between countries under a FTA dispute settlement procedure. Since 2018, there have been a total of 18 cases where Parties invoked FTA dispute settlement provisions, four of which were labour- or environment-related disputes. It is also worth noting that two out of these four cases were complaints filed against Korea.
The main components of FTA labour standards include (ⅰ) incorporation of ILO international labour standards (ⅱ) non-derogation (ⅲ) effective implementation of labour obligations (ⅳ) labour cooperation, and (ⅴ) corporate social responsibility (CSR). More recent FTAs also cover issues such as gender equality, protection of migrant workers' labour rights, and import prohibition on products made by forced labour. With respect to enforceability and dispute settlement, one should pay particular attention to the Facility-Specific Rapid-Response Labor Mechanism or “RRM”, which was introduced by the United States for the first time in USMCA. Under the RRM, the Parties can address settle labour-related matters more quickly and effectively than the traditional ‘state-to-state’ dispute settlement system, by directly targeting ‘facilities’ responsible for alleged infringements of freedom of association or the right to collective bargaining.
Further, the Panel of Experts ruling made on January 20, 2021 under the Trade and Sustainable Development (“TSD”) Chapter of the Korea-EU FTA would likely have an important implication in future negotiations, interpretation and application of FTA labour standards. In that case the Panel held that government measures that address labour rights, irrespective of whether such measures were actually targeted at industries, companies or workers engaged in international trade, can essentially be ‘trade-related’ measures under the Korea-EU FTA. According to the Panel, trade and fundamental labour rights are intrinsically linked.
Secondly, more recently a series of attempts have been made to introduce a new trade-labour linkage model that can be distinguished from the previous FTA labour standards, as witnessed in the ongoing IPEF negotiations. Labour issues are being dealt with as a core agenda in Pillar 1 led by the United States. Theoretically, the IPEF Pillar I labour standards could be (ⅰ) USMCA or USMCA plus level, (ⅱ) U.S. FTA level prior to USMCA, or (ⅲ) based on ILO international labour standards. For instance, in the negotiation the United States might try to link the issue of forced labour to supply chain issues to match the USMCA level. It is also important to note that without the obligation to prohibit imports made by forced labour, a certain level of leverage can be made against forced labour-issues within IPEF Parties’ domestic law and policies, via the incorporation clause of the ILO Declaration on Fundamental Principles and Rights at Work. The same declaration refers to the principle of 'elimination of forced labour' as a fundamental labour right. Thus for IPEF Parties it would likely be an important task to make eliminate use of fource labour economy-wide. It would be wise to start from sectors and industries where concerns have been raised related to the possible use of forced labour. The Trafficking in Persons Report of July 2022 and the Report on Human Trafficking in the Seafood Supply Chain of 2020 by the U.S. Department of State can be a starting point.
Thirdly, in addition to the trade-labour linkages at the international level, the linkage at domestic level appears to be in full swing. In particular, import restrictions on products made by forced labour during product production process are becoming visible, especially in the U.S. and EU. The Uyghur Forced Labor Prevention Act or “UFLPA”, which went into effect on June 21, 2022 in the U.S., is the most obvious example. The UFLPA provides for (ⅰ) import prohibition of goods made by forced labour and (ⅱ) sanctions against individuals and businesses related to the use of forced labour in Xinjiang Uyghur Autonomous Region (XUAR), China. Under the rebuttable presumption under the UFLPA, it has been reported that a considerable amount of imports from XUAR have currently been withheld because importers could not demonstrate that the product at hand was not produced in XUAR nor otherwise using forced labour. According to the UFLPA Enforcement Strategy published on June 17, 2022, polysilicon, cotton, tomatoes, and apparel products were designated as 'high-priority sectors for enforcement' and are receiving the most strict import restrictions. Further, since its implementation, a number of enforcement cases have been confirmed on other sectors including electronics, agricultural products (other than tomatoes and tomatoe products), pharmaceuticals, and base metals. It is expected that CBP will continue to expand UFLPA enforcement and eventually require supply chain tracking for a wider range of products.
In a similar vein, the European Commission announced on September 14, 2022 the Proposal for a Regulation on prohibiting products made with forced labour on the Union market. The proposal prohibits the placing on the EU market of products made with forced labour as well as their export from the EU. Unlike the UFLPA, the EU proposal does not explicitly refers to XUAR or China, but are designed to be universally applicable to all products regardless of country of origin (even including EU member states within its internal market). It is expected that the U.S, and EU will develop a consistent trend to make stricter labour standard compliance mandatory for the entire supply chain of products.
Based on the analysis above, this study advises that the Korean government identify trade and labour-related concerns raised or likely to be raised by other trading partners and rationales behind it, and to assess possibility of such concerns to become a formal trade disputes filed against Korea through FTA dispute settlement mechanisms. It is important to take such assessments into consideration when preparing future negotiation strategies for FTA/IPEF labour standards. Also, clarifying the scope, legal nature, and meaning of each FTA labour standard would be a meaningful task to secure legal stability and predictability, and to prevent trade disputes related to FTA labour obligations.
It is also necessary to prepare for the possibility that FTA labour standards may act as regulatory barriers to Korean companies that are established in the third countries and produce and export goods to the U.S. For instance, the IPEF can have significant implications because many ASEAN countries such as Vietnam, Thailand, the Philippines, Indonesia, and Malaysia are participating in the Pillar 1 negotiation.
For the IPEF negotiations, since market access is not a subject of negotiation in IPEF, it is necessary to think about what can be presented as a carrot to the stick of strict labour standards. If the IPEF includes an enforcement mechanism, such an enforcement mechanism should largely be based on either incentives or penalties for compliance and breaches of labour standards.
Lastly, it is necessary to be take caution in introducing laws and systems for regulatory measures that link labour standards and supply chains, such as measures to prohibit imports made by forced labour. To prepare for labour standards and supply chain-linked regulatory measures and minimize the adverse impacts, this study advises that the Korean government consider establishment of a single response system that can jointly respond at the national level to such regulations.