Upstairs, Trade Law; Downstairs, Labor Law

Article excerpt

I. INTRODUCTION

The title of this Article is intended to evoke a connection with the British television series about an aristocratic family and its brigade of servants. They are separate parts of the household and yet inextricably intertwined. Those "downstairs" may be unobtrusive or even invisible to outsiders, but are absolutely necessary to the smooth operation of the mansion. After years of intimate contact and the pressure of world events, the two parts of the household are wedded into a genuine whole. They become "friends," no longer simply master and servant.

This Article principally focuses on issues that the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) agreements at present do not directly address but which hover prominently in the background: labor law and employmentrelated aspects of immigration law.1 This glaring omission from the GATT/WTO agreements has already been remarked upon and analyzed in numerous law review articles.2 The situation persists even though the Director-General of the WTO recently affirmed in an address to the International Confederation of Free Trade Unions that "[t] here is a profound connection between economic,

political, social and industiral freedom and economic development."3

How do we achieve the leap from solidarity in a television drama to that in the real world of international trade? First, this Article attempts a diagnosis of the underlying problem, i.e., why labor rights are virtually ignored in the GATT/WTO framework. To understand the present, it is necessary to go back further in time than the last fifty years. Next, this Article addresses the desirability and likelihood of future inclusion. Finally, it considers approaches to, or means of, inclusion: whether the WTO should adopt a side agreement on labor similar to the one created for the North American Free Trade Agreement (NAFTA); whether the International Labor Organization (ILO) as an institution should be given an advisory, consultative, or mediating role in Dispute Settlement Body (DSB) proceedings where labor issues are involved; or whether a new institution, or joint venture, should be created between the WTO and the ILO.

Amending the WTO Agreement or adding a side agreement on labor is an extremely difficult task under any circumstances.4 To undertake an amendment or supplementary agreement so soon after the end of the Uruguay Round would be a misdirection of effort. This Article concludes that proponents of international labor rights should leave off agitating for textual emendations and institutional reforms and instead concentrate their efforts to bringing the proper case to the DSB as it is currently constituted. The DSB has already demonstrated its willingness and competence to handle domestic policies with spill-over effects on trade.5

II. THE HAzARDs OF PREDICTION

Let us begin, however, with the mise-en-scene. The name of this symposium is "Global Trade Issues in the New Millennium," "in" rather than "for" or "at the beginning of." The name is much more

inviting to the imagination than, say, "The DSU After Five Years" or "The WTO at 2000: Success or Failure?" Is the ambiguity of the name accidental or deliberate? Should one predict the future on the basis of the trajectory of past events and take a realistic position about the state of play? Or should one adopt a hopeful and idealistic perspective about the manner in which trade relations should operate starting at some point in the next thousand years, assuming a kind of mutational spurt? A millennium is a very long period of time. Looking back from the year 2000, the second millennium covered the Crusades, the Mongol invasion, the Ottoman Empire, the Renaissance, the French Revolution, two world wars, the invention of the light bulb and the atomic bomb.

What, if anything, do lawyers and law professors as such have to add to a spirited debate about the global economy already begun by historians, economists, and political scientists? …