This article examines the structure of Chapter 19 of the Trans-Pacific Partnership (“TPP”), the Labour Chapter, and the logistics surrounding its implementation in the various countries participating in the agreement. Particular attention is paid to Vietnam, Malaysia, and Brunei, the three countries that will execute separate Consistency Plans. Additionally, this article will consider the challenges associated with enforcing the various labour provisions, particularly given the unique nature of the TPP’s enforcement mechanisms.
Key Labour Requirements
In an effort to remedy many longstanding labour issues across the globe, the TPP’s requirements incorporate several references to the International Labour Organization’s (“ILO”) Declaration on Fundamental Principles and Rights at Work. The Labour Chapter requires that member countries adopt and maintain legislation and regulations that guarantee the following rights from the ILO: (i) freedom of association and the effective recognition of the right to collective bargaining; (ii) the elimination of forced labour; (iii) the effective abolition of child labour and a prohibition on the worst forms of child labour; and (iv) the elimination of employment discrimination. Additionally, the agreement calls for the adoption and maintenance of legislation governing acceptable minimum wages, hours of work, and occupational safety and health. Parties are disallowed from waiving, derogating from, or failing to enforce laws implementing these rights in a manner affecting trade or investment. See “Critique on Ability to Enforce,” below.
To address labour rights issues in certain countries that are parties to the TPP, the United States negotiated additional bilateral agreements, known as Consistency Plans, with Vietnam, Malaysia, and Brunei. These plans require each country to implement legislative and regulatory reforms and increase enforcement capacity as a prerequisite to their reaping the trade benefits associated with TPP membership.
As each plan is custom tailored, the provisions are designed to address specific labour issues arising in each country. The U.S.-Malaysia Consistency Plan, for example, requires improvements to migrant worker labour rights, such as prohibiting employers from keeping a migrant worker’s passport. The U.S.-Brunei Consistency Plan centers around remedying the country’s child labour issues. The U.S.-Vietnam “Plan for Enhancement of Trade and Labour Relations” mandates the removal of Vietnam’s ban on independent unions. These unions must also be granted the same rights ordinarily reserved for the government, and they must be allowed to affiliate with one another in an effort to establish a broader national federation, also known as “cross-affiliation.”
Of all three Consistency Plans, only the U.S.-Vietnam Plan includes an enforcement mechanism independent from the TPP. If Vietnam fails to implement legislation or regulations that allow for cross-affiliation within five years, the United States has two years to decide whether to unilaterally suspend all tariff phaseouts contained within the TPP that have not occurred up to that point. Thus, under the U.S.-Vietnam Plan, the U.S. is not required to utilize dispute settlement procedures as it otherwise must under the TPP for other countries. See “Enforcement Mechanisms,” below.
As discussed above, all members of the TPP agree to preserve certain labour rights outlined in the ILO Declaration on Fundamental Principles and Rights at work. As one might expect, the TPP contemplates scenarios where certain countries fail to meet their obligations under the agreement, and thus it provides for certain enforcement mechanisms. The three major pillars of enforcement are:
Cooperative Labour Dialogue. At the most basic level of enforcement, one country may request a dialogue with another TPP member “on any matter under this Chapter at any time by delivering a written request.” A dialogue between the two countries is then initiated within 30 days, where any such issues under the TPP’s Labour Chapter may be discussed.
Labour Consultations. The next tier of enforcement essentially consists of one country filing a case against another for an alleged infraction of the agreement. Although similar to the Cooperative Labour Dialogue, the consultations are more formal and require that an agreement be reached within 60 days. If the latter is not achieved, the country that initiated the consultation may escalate the matter to the third tier of enforcement.
Dispute Settlement Process. The “teeth” of the TPP consist of a panel composed of three objective international trade and subject matter experts. The panel evaluates each dispute before it and holds the power to enforce trade sanctions against any country it deems to have violated the agreement.
Critique on Ability to Enforce
While advocates for the TPP rely on the aforementioned provisions in touting the agreement as “enforceable,” a recent report by the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) notes several shortcomings. AFL-CIO’s arguments are couched in the theory that the TPP is “enforceable” only to the extent that there are sufficient mechanisms to provide confidence that the labour provisions will actually be enforced.
For example, as noted by the AFL-CIO report, the TPP fails to require parties to advance to the next stage in the dispute settlement process when an earlier stage proves ineffective, which will lead certain labour disputes to simply languish within the enforcement system and never see a resolution. The report also points out that the TPP fails to include measurable benchmarks or an independent evaluation to determine whether the Consistency Plans, discussed above, are actually met. This failure means that the determination that a Consistency Plan has been fulfilled is wholly discretionary.
Additionally, John Sifton of Human Rights Watch has highlighted that, according to the U.S.-Vietnam Plan, it is the U.S. government’s obligation to act in the event that Vietnam does not follow through on the agreement. Sifton argues that the U.S. government would be adverse to such confrontation in order to avoid harming corporate interests.
The Consistency Plans have also been criticized for lacking in their provisions designed to prohibit discrimination. The AFL-CIO report notes that the U.S.-Vietnam Plan, for example, makes no mention of religious, political, LGBT, or immigrant protections. Similarly, the report asserts that the U.S.-Malaysia plan fails to consider discrimination on the basis of LGBT or immigration status, even though discrimination on these grounds occurs frequently throughout Malaysia.
Finally, according to the AFL-CIO report, neither the TPP itself nor the Consistency Plans address basic human rights, including freedom of expression, which leaves open avenues for member countries to circumvent the labour requirements through other legal means at their disposal.
Although the TPP provides for several labour protections, enforcement mechanisms may indeed prove to be problematic. It remains to be seen whether the labour goals set forth in the TPP, and related Consistency Plans, will come to fruition.