In Defense of Transnational Domestic Labor Regulation
Doorey, David J., Vanderbilt Journal of Transnational Law
Transnational domestic labor regulation (TDLR) is unilateral regulation introduced by a government to influence labor practices in foreign jurisdictions. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations systems in ways that might lead to improved labor conditions. Particularly interesting is the potential for TDLR to harness or steer private labor regulation--the many non-state sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should try to influence foreign labor practices at all is a controversial question. This Article explores the arguments both for and against a unilateral legislative strategy that aims to improve working conditions in foreign countries. While the Article ultimately supports this strategy, it concludes that the design of the model must have as its principal objective the empowerment of the foreign workers themselves. TDLR that is poorly designed or loses sight of this objective can produce harmful results that leave the workers even worse off.
TABLE OF CONTENTS I. FOREIGN LABOR PRACTICES AND THE DOMESTIC POLITICAL AGENDA WITHIN DEVELOPED STATES II. ARGUMENTS AGAINST A TRANSNATIONAL DOMESTIC LABOR REGULATION (TDLR) PROJECT AND PRIVATE LABOR REGULATION (PLR) A. TDLR Undermines Foreign Government National Sovereignty and Comparative Advantage B. PLR May Seek to Produce Norms that Conflict with Social Norms in the Foreign States C. Reliance by PLR Campaigns and Initiatives on Market Forces is Inappropriate and Ineffective D. PLR Legitimizes the Substitution of Private or "Self" Regulation for State Regulation E. PLR Shifts Responsibility for Defining Appropriate Standards from States to Unaccountable Private Actors F. The Costs of TDLR Would Outweigh Any Potential Benefits III. ARGUMENTS IN SUPPORT OF TRANSNATIONAL DOMESTIC LABOR REGULATION A. The Sovereign State and Labor Practice Governance B. PLR and TDLR Might Bolster Government Sovereignty by Improving Compliance with National Labor Laws C. The Modest Impact of PLR Initiatives and Campaigns on Labor Practices and Foreign Inward Investment D. PLR Encourages Greater Deliberation and Discourse About Abusive Supply Chain Labor Practices E. PLR May Influence Internal Management Systems of Multinational Corporations in Useful Ways F. PLR May Encourage Industry Collaboration Towards Finding Sustainable Solutions to Reputation-Damaging Labor Practice Abuses IV. THE NEED TO ENCOURAGE PARTICIPATION OF LOCAL ACTORS V. CONCLUSION
Governments of advanced economic nations have been wrestling with an intriguing question: to what extent should they seek to use their influence to improve labor practices in economically developing countries? Should the U.S. government expend financial and political resources to improve working conditions in Chinese or Indian factories? These are controversial questions.
On one side of the debate is the argument that determining acceptable employment practices within a particular jurisdiction is best left to its governing political leaders and the local industrial relations actors, including employers, employees, and, where they exist, unions. On the other side is the argument that while multinational corporations (MNCs) have reaped huge financial rewards from globalization and the proliferation of the global sourcing model over the past quarter century, they have often done so by exploiting poor working conditions in countries where independent unions are nonexistent or outlawed altogether and where national governments are either unable or unwilling to enforce decent labor standards to protect workers. …