Labour Laws and Global Trade
Servais, Jean-Michel, International Labour Review
Labour laws and global trade. By Bob HEPPLE. Oxford, Hart, 2005. xxiii + 302 pp. Boxes, tables, bibliography, index. ISBN 1-84113-160-1 (hardback), 1-84113-187-3 (paperback).
More than any other branch of law, labour law - both national and international - has been destabilized by market liberalization. More than in any other branch of law, the underlying trade-off or balance of power is jeopardized by globalization and the consequent heightening of competition between firms and countries.
Yet the concerns which first brought labour law into being can hardly be said to have abated today. One of them was to protect workers' health and income, typically the most vulnerable aspects of the employment relationship. Another was to provide such protection by enforcing common rules so that socially progressive employers would not be put at a disadvantage because of "social dumping" on the part of less sensitive competitors. Yet another was to prevent the marginalization of the poorest population groups by strengthening social cohesion. To address these concerns is in the public interest of States; also, they are largely shared by workers' and employers' organizations. However, they are difficult to square with policies and projects that extend beyond national boundaries.
Meanwhile, new social players have emerged on the global scene. These include multinationals wielding massive financial power, non-governmental organizations (NGOs) with global outreach which seek to represent particular interest groups in today's global civil society, and regional associations of States which - like the European Union - pursue the dual objective of eliminating economic frontiers among themselves while strengthening their common position in relation to other countries and regions.
The social aims of such organizations of States are compatible, albeit to a limited degree, with each individual country's concern for the protection of its own workforce. But the aims of multinationals and NGOs inevitably diverge because they are private organizations that represent the material or ethical interests of their members. Admittedly, when a large firm adopts a set of rules governing the organization of work, it often does so in order to extend decent treatment to its employees - though another of its motivations is of course to give them an incentive to increase their productivity. Yet, a firm's main reason for adopting such rules may well be to project an attractive corporate image to consumers across the global marketplace. However legitimate they may be, such concerns fall into an entirely different category. And the growing power of these new players evidently accounts for the weakening of a system of law constructed around considerations of public interest. This has resulted in the emergence of new kinds of rules.
The transnational labour standards that have emerged in the wake of economic globalization are heterogeneous, complex and sometimes contradictory. Even experts can have a difficult time making sense of the ensuing proliferation of provisions, which vary widely as to their source and content and the degree to which they are binding. To have compiled them, classified them, explained them and analysed them is the first merit - and a very considerable one - of this book by Bob Hepple (who is Emeritus Master of Clare College and Professor of Law at the University of Cambridge and Honorary Professor of Law at the University of Cape Town).
From the very outset, Hepple queries the relevance of the standards adopted by the International Labour Organization. His discussion of ILO Conventions and Recommendations is both accurate and sympathetic though he makes no attempt to gloss over the imperfections of the system or the challenge of adapting it to contemporary socio-economic reality. In his view, the main obstacle to the application of the Organization's Conventions by poor countries is the fear that this would put them at a competitive disadvantage in international trade (p. …