Monday, April 5, 2021

International Labor Rights Case Law Journal dedicates first issue of 2021 to OECD Guidelines

The first issue of Volume VII (2021) of The International Labor Rights Case Law journal is dedicated to examining the implementation of the OECD Guidelines for Multi-National Enterprises by National Contact Points (NCPs) in Belgium, France, Germany, the Netherlands, Switzerland, the United States, and Australia. In existence since 2015, the ILRC pairs an excerpt of a key international labor rights decision with a comment by an expert in international labor rights. 

As explained by the journal's Editorial Team in the Introduction to the first issue of Volume VII, OECD member states adhering to the Guidelines must establish an NCP to implement a specific instances mechanism under which trade unions, non-governmental organizations, and other interested parties may submit complaints about the failure of MNEs to comply with the Guidelines. In addition to what the Editorial Team describes as a "relative fragmentation of mediation procedures within each NCP," a review of the six comments on the operation of NCPs of seven countries reveals a reluctance on the part of MNEs to engage in meaningful mediation of disputes related to Freedom of Association and trade union rights.

In his Comment comparing the operation of the U.S., Swiss, and Australian NCPs in the context of Coca Cola's operations in Indonesia, Jernej Letnar Černič observed three different approaches to the same case by three different NCPs. He also observed that the Australian NCP is housed in the Secretariat of the Treasury, while the Swiss NCP is housed in the Secretariat of the Economy - neither of which is a judicial body. The U.S. NCP is housed in that country's Department of State (Foreign Affairs). In reviewing the report issued by the German NCP on Adidas's failure to mitigate the adverse human rights effects of the actions of a sub-contractor in Indonesia, I noticed that the German NCP is housed in the Secretariat of the Economy - but did not mention that fact in my Comment on the German NCP's report. I did wonder, however, whether the fact that the German NCP is housed in that country's Secretariat of the Economy was a major factor in why the NCP adopted such a narrow view of the MNE's obligation to exercise due diligence and be held responsible for the adverse human rights effects of a subcontractor.

In her Comment on the report issued by the Belgian NCP on a complaint filed against InBev, the largest global beer producer, about human and labor rights violations at a beer production facility in India, Kari Otteburn questioned whether NCP-sponsored mediation alone is an effective tool to address human rights violations in MNE global value chains. Otteburn observed that unlike other NCPs, the Belgian NCP is not empowered to issue an assessment of underlying facts.

Similarly, in a Comment on the report issued by the Dutch NCP in a case involving violation of trade union and child labor rights by a Dutch sugar company in Bangladesh, Yvonne Erkens found the Dutch NCP's attempt to mediate of trade union rights in the case to be ineffectual because the MNE in question only accepted mediation of disputed instances of child labor, not trade union issues.

Finally, Isabelle Daugareilh wrote a Comment on the first complaint filed with the French NCP regarding COVID-19 safety violations at Teléperformance call centers in 10 countries.

In addition to the series of articles on the application of the OECD Guidelines by various NCPs, the issue contains comments on the Observations of the ILO Committee of Experts on Labor Law in Bangladesh, a decision by the European Court of Human Rights on Forced Labor and Trafficking in Croatia, the lack of legal regulation of forced labor in Poland, and Equal Opportunity for Female Officers in the Indian Military.

Note: If you are unable to read the commentaries in the ILRF, you might consider reaching out to authors to ask them for a limited copy of their article. Or - if you are affiliated with a college or university, consider asking your library to subscribe to this excellent journal.

Saturday, February 6, 2021

Panel of Experts releases significant report analyzing Freedom of Association obligations in EU-Korea Free Trade Agreement

The World Cup for International Labor Lawyers came early this year with the release of the Report of the Panel of Experts analyzing labor obligations under the EU-Korea Free Trade Agreement in January. This report is the most significant legal development in the field of Trade and Labor Provisions since June 2017, when an Arbitral Panel released its report analyzing labor obligations under the CAFTA-DR in Guatemala

For the "Tik Tok" version of the Panel's report, see my piece in the
ABA's International Labor and Employment Law Committee Newsletter, Panel of Experts Issues Report on Labor Issues Raised under EU-Korea FTA

For a more in-depth discussion of the Panel's legal
analysis of the concept of Freedom of Assocation, see Tonia Novitz's excellent February 4 Oxford Human Rights Hub post, Asserting Jurisdiction to Assess Compliance with 'Multilateral labour standards and agreements' - The EU-Korea FTA Panel Decision.

And, for a thought-provoking analysis of the Report of the Panel of Experts in the EU-Korea case, check out Desiree LeClerqc's thoughtful post in the International Law and Economic Policy Blog, The Panel Report under the EU-Korea Trade Agreement Concerning Labor Practices: What are the Purposes of Trade Agreements as they Relate to the ILO's Fundamental Labor Rights? In this piece, LeClerqc takes on the issue of coherence in the interpretation and analysis of fundamental labor rights, the 1998 ILO Declaration, and ILO Conventions. 

Labor and Trade Lawyers are going to be discussing and comparing the EU-Korea and the CAFTA-DR Guatemala labor reports for years to come. At the heart of this debate is the fundamental role of workers in the global economy - rights and trade, who determines the substance and implementation of those rights ... a very interesting era to be working on these issues.

Saturday, January 23, 2021

Time for enforceable women's rights provisions in U.S. free trade agreements - starting with the proposed U.S.-Kenya FTA


My new IntLawGrrls post on the proposed U.S.-Kenya free trade agreement highlights the opportunity the FTA presents to the Biden administration and the U.S. Congress to transform U.S. trade policy through the adoption of enforceable women's rights provisions in U.S. free trade agreements.

The United States is falling behind the European Union and other countries like Canada, Chile, and Kenya in the adoption of gender-forward trade provision.

Update - February 13, 2021

Thanks to Aleydis Nissen of Leiden University who reached out and shared her excellent 2020 piece in AfronomicsLaw, "Where is the flower power these days? The EAC-EU Economic Partnership Agreement." Nissen's piece is full of up-to-date economic data and, importantly, an insightful analysis of the geopolitical and legal status of the Eastern African Community (EAC) and potential impact of the EAC-EU Economic Partnership Agreement on women's rights in the floricultural sector in Kenya.