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Services and Labor

Introduction
Rules on services primarily found in
GATS
And certain regional economic
organizations
EU and NAFTA

Rules governing labor (movement of


labor) found in ILO promulgated
international labor standards
Some regional organizations
And national legislation

General Agreement on Trade in


Services (GATS)
GATS one of the three main
multilateral annexes to the
Agreement on WTO
GATS made up of three interrelated
components
Framework agreement
Sectoral annexes (particular economic
sectors)
National Schedules of Specific
Commitments

Trade in Services (GATS) Contd


Framework Agreement
Six parts
Scope and definition of GATS
General obligations of member states
Specific obligations of commitment of
member states
Schedule for liberalization
Institutional structure
Miscellaneous (including definitions)

Trade in Services (GATS) Contd


Framework Agreement (contd)
Scope and Definition
Covers all trade in services in any sector
except government functions
Does not define service, or service sector
Use common definitions

Service: act or action such as work rendered


or performed for another
Service sector: parts of the economy
involving performance of service

Trade in Services (GATS) Contd


Framework Agreement (contd)
Scope and Definition (contd)
Trade in services: (four modes) p. 398
Cross-border supply of services (no physical
movement)
Cross-border supply consumer to supplier
(tourism)
Services supplied by member state in another
members territory by service provider (bank
branch)
Services supplied by member state in another
members territory temporarily (construction,
consulting)

Trade in Services (GATS) Contd


Framework Agreement (contd)
General obligations and disciplines
Two general obligations
MFN treatment
Transparency

MFN treatment not a binding requirement


Allows exceptions MFN exemptions
Some pressure
Time limits
Diminishes effectiveness (everyone has
exemptions)

Trade in Services (GATS) Contd


Framework Agreement (contd)
General obligations and disciplines
Transparency
Requires member states to publish (prior to entry
into force) all national measures and international
agreements that affect obligations under GATS
Must notify Council for Trade in Services of
changes in above (at least annually)
Must promptly respond to member states
requests for information and inquiries

Trade in Services (GATS) Contd


Framework Agreement (contd)
Other General obligations and disciplines
Similar encouragement as GATT to encourage
developing countries South/South Preferences
Improving capacity, efficiency, competitiveness of
developing members

Encourages TS and labor movement through


establishing common markets and free trade areas
Service integration agreement
Eliminates all or substantially all discrimination in a
sector
Labor-market integration agreement
Exempt from residency and work-permit requirements

Trade in Services (GATS) Contd


Framework Agreement (contd)
Other General obligations and
disciplines (contd)
Domestic regulations affecting TS
reasonable, objective, and impartial
Forbids applying licensing, qualification
requirements and technical standards in a
burdensome, restrictive or nontransparent
manner

Trade in Services (GATS) Contd


Framework Agreement (contd)
Other General obligations and
disciplines (contd)
Member state may grant monopoly rights
(TV, radio frequency)
No restrictions on international
payments/current transactions
Emergency measures allowed

Trade in Services (GATS) Contd


Framework Agreement (contd)
Specific commitments
Lists sectors (or subsectors) opening to market
access
Lists limitations of these sectors, these may be:
Number of service suppliers allowed
Total value of transactions or assets
Total quantity of service output, number of service
operations
Number of natural persons employed
Type of legal entity
Participation level of foreign involvement

Trade in Services (GATS) Contd


Framework Agreement (contd)
Specific commitments (contd)
Market access: see p. 404
National treatment: see p. 404
GATS only requires observation of specific
commitments

Schedule of liberalization
Goal of progressive liberalization

Trade in Services (GATS) Contd


Framework Agreement (contd)
Institutional structure
Council for Trade in Services
Member states representative
Some subordinate bodies for different sectors
(Committee on Trade in Financial Services)
Provides technical assistance
Consultations
Dispute resolution (DSU standards)

Trade in Services (GATS) Contd


Framework Agreement (contd)
GATS annexes
Deals with special aspects of particular service
sectors or issues see Exhibit 8-1, p 406

GATS schedules of specific commitments


Regarding sectors that are opened, must state

Terms, limitations, conditions on market access


Conditions / qualifications on national treatment
Undertakings on additional commitments
Time frame for implementing (if applicable)
Date of entry into force of its commitments

Regional Intergovernmental
Regulations on Trade in Services
EU law on trade in services
Much broader than GATS, now EU wide
Freedom to provide services
Right of establishment (movement)
Now enshrined as core right of EU

Regional Intergovernmental
Regulations on TS Contd)
NAFTA
Very similar to GATS, transparency, MFN
treatment, national treatment
Non-NAFTA service providers given some rights p. 408

Like GATS, can modify, but not more restrictive


Key differences
Organized by sectors rather than services
Does not specifically define four basic modes of supply
Sectoral coverage
GATS sectors open, sectors limitations
NAFTA sectors not open, limitations on sectors not open
If not listed, then open and no limitations

International Labor Law


International Labor Organization
(ILO)
General conference (legislative)
Governing body (executive)
International labor office (secretariat)
Members of GC and GB: government (50%)
Labor (25%) and Employers (25%)

International Labor Law


Contd
International Labor Standard
ILO goal of establishing ILS, establish
rules or standards that have an
international effect
Through ILO conventions and
recommendations
See differences: p. 410

International Labor Law


Contd
ILO Reports
Member states must provide annual
reports
Verify compliance with conventions ratified

Also irregular reports for information on


recommendation compliance and
unratified conventions
Format: see p. 412

International Labor Law


Contd
ILO Reports (contd)
Committee of Experts on the Application
of Conventions and Recommendations
Summary, and analysis/evaluation

Conference Committee on the


Application of Conventions and
Recommendations
Makes special list of violators

International Labor Law


Contd
Settlement of disputes between ILO
member states
Violation of ILO Constitution, or ILO
Convention (ratified) or ILO Convention
on Freedom of Association (party or not)
1) investigate noncompliance by committee
of inquiry
2) investigate abuse by Fact Finding
Conciliation Committee on Freedom of
Association
3) interpretation of ILO Constitution and ILO
Conventions by International Labor Office

International Labor Law


Contd
Settlement of disputes (contd)
Commissions of Inquiry
Fact Finding Conciliation Committee on
Freedom of Association see definition p. 414
Workers the right to form and join trade unions
Protects workers from antiunion discrimination
and protects unions from employer domination

International Labor Office


Interpretation can be referred to ICJ
cumbersome, expensive
Labor Office expresses an opinion

International Labor Law


Contd
Settlement of disputes between IGO
and their employees
ILO Administrative Tribunal
Special court hearing complaints from
employees of IGOs
Power to rescind order/decision, or
obligation relied upon, NOT power to order
IGO to undertake new action
See case 8-2, p. 416

International Labor Law


Contd
Human Rights of Workers
Universal Declaration of Human Rights
See p. 419, list of rights

Legal effect of UDHR


Not a treaty or convention
Does it constitute customary international law?

UN consistently relies on it when applying HR of UN Charter


General Assembly basic principles of international law
International conferences --- adopt resolutions obligation
States incorporating UD in constitution of main laws
Court decisions have held UD as customary international law

International Labor Law


Contd
Human Rights of Workers (contd)
Alien Tort Claims Act (ATCA) (USA law)
See case 8-3 for full discussion

International Labor Law


Contd
Human Rights of Workers (contd)
International Covenant on Economic,
Social, and Cultural Rights
Implements rights set out in UDHR, giving
them binding force of treaty law
BUT extent varies from country to country
Countries commit themselves to taking steps to
the maximum of its available resources to
achieve progressively the full realization of
those provisions

Regional Intergovernmental
Regulations on Labor
Employement laws in the EU
Freedom of movement of workers
Freedom of movement of workers universally
applied
Actionable right

Regional Intergovernmental
Regulations on Labor
Employment standards of OECD
OECDs Guidelines for Multinational
Enterprises
For home and host countries
See p. 432
Guidelines are voluntary,
Influence as establish a minimum international
standard

Regional Intergovernmental
Regulations on Labor
Protection of Workers Rights by the
Council of Europe
European Convention on Human Rights
of 1950, p. 433
European Social Charter of 1961, p. 433

Regional Intergovernmental
Regulations on Labor
Transnational Organized Labor
Transnational labor unions
representing employees across
international boundaries can only exist
where IGOs have the power to sanction
them (EU, Council of Europe)
None

Transnational Labor Organization


Encourage cooperative action, support
national organizations, coordinate municipal
labor unions, collecting/disbursing solidarity
funds etc.

Movement of Workers
UDHR: everyone has the right to
leave any country, including his own,
and to return to his country
Not generally accepted rule of
international law today
Requirement of passport, permission to
leave country
US: no right to passport or right to leave
country

Movement of Workers
Contd
Visas
Host states counterpart to passport

Temporary visas
Visitors, transits, students etc. See p. 438
Reading 8-3, US visa regulations
See websites for more current information

Special categories (students)

Permanent visas to immigrants


Compliance with Visa Obligations

Movement of Workers
Contd
Regulation of Foreign Workers
Percentile legislation
Abide by host state labor laws,
sometimes required to abide by home
state labor laws

Movement of Workers
Contd
Application of Home State Labor Laws
extraterritorially
Principle not to apply --- concept of
sovereignty
US: both
Antidiscrimination provisions of Civil Rights
Act
Americans with Disabilities Act of 1990

applies to US citizens working for US


employers overseas