7. China – U.S. Implementation of ILO Standards by BITs and Pieces (FTAs)

The discussion, with Chinese scholars and Chinese Government Labour officials, took place during an academic conference on new Social Security Law at Peking University in December 2012. See Brown 2015.

ILO, Declaration, 1998, Article 2.

Protects the right of workers and employers to establish and join organizations according to their own choices without prior authorization, and lays down a series of guarantees for the free functioning of organizations without any interference by the public authorities.

Guarantees workers the right to enjoy adequate protection against anti-union discrimination, prohibits mutual interference between workers’ and employers’ organizations, and provides for measures to promote collective bargaining.

Requires member states to suppress the use of forced or compulsory labour in all its forms as soon as possible, with certain exceptions, such as military service, properly supervised convict labour etc.

Requires each member state to take effective measures to secure the immediate and complete abolition of forced or compulsory labour as a means of political coercion or education, punishment for political dissenters, economic development, labour discipline, punishment for participation in strikes, or discrimination.

Aims at the abolition of child labour and requires member states to specify a minimum age for admission to employment not less than the age of completion of compulsory schooling.

Requires members to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour such as slavery, prostitution, drug trafficking etc.

Calls for a national policy to eliminate discrimination in access to employment, training, and working conditions on the basis of race, colour, sex, religion, political opinion, national extraction or social origin and to promote equality of opportunity and treatment with regard to employment and occupation.

Calls for equal pay for men and women for work of equal value without discrimination based on sex.

ILO, Declaration, 1998.

Alston 2004.

See Spieler 2003, at p. 99.

ILC, Consideration of a possible Declaration, 1998.

ILC, Report of the Committee, 1998, para. 217.

Ibid., para. 22.

Ibid., para. 72.

ILC, Consideration of a possible Declaration, 1998.

Maupain 2005, at p. 450.

Human Rights Watch 2007.

AFL – CIO 2000.

The ratification dates can be found on the ILO Normlex website.

Enfield 2000.

Brown 1997.

KORUS 2011, Article 13.3 (a)–(f), at n. 17.

The first Strategic Economic Dialogue between the U.S. and China was launched in September 2006. The second to the sixth Strategic Economic Dialogues were held in December 2006, May 2007, December 2007, June 2008, and December 2008, respectively. When President Barack Obama and President Hu Jintao first met in April 2009, the Strategic Economic Dialogue was renamed as the Strategic and Economic Dialogue to encompass strategic issues. The first Strategic and Economic Dialogue was held from 28 to 29 July 2009, in Washington, D.C.

Bourassa 2013. Noting that following SED, the two countries held the U.S. – China Investment Forum on 16 June 2008, where both sides agreed on a technical framework and work plan for the BIT. Yet, the U.S. vowed that the timeline for concluding the agreement would be determined by the quality of progress made on some related issues with China.

Talley and Mauldin 2013.

Office of the Spokeperson of the U.S. Department of State, 2012. At the U.S. – China SED in July 2013, representatives from the U.S. and Chinese governments announced that the two countries had entered into sustained negotiations on the BIT, moving from its technical framework to talks on the actual text.

U.S. Model BIT 2012, Article 13(2). “These obligations align with firmer commitments in recent U.S. free trade agreements (FTAs) and depart from the aspirational language of the 2004 Model and the BITs of other states, which merely require that parties ‘should not’ derogate from existing labor legislation or ‘shall strive to ensure’ not to do so. The obligations in question are not limited to investments from the other party, but equally apply to the weakening of labor standards in favor of investments of third states (Article 2(1)(c))”, see Prislan and Zandvliet 2013.

U.S. Model BIT 2012.

U.S. Model BIT 2012, Article 13(4). On the other hand, it can be argued that investors might pursue claims relating to the non-enforcement of labour obligations as they arise under other standards for which arbitration is available, see Prislan and Zandvliet 2013.

U.S. Model BIT 2012, Article 13(4).

The U.S. Model FTA Social Dimension provision, illustrated in KORUS, also sets out a level of transnational administrative oversight and coordination, mechanisms of implementation, and enforcement mechanisms, some more meaningful than others. The typical U.S. enforcement mechanism weds trade and labour issues and authorizes State to State or stakeholder arbitration with penalties, see KORUS 2011.

U.S. Model BIT 2012, Article 13(1).

Ibid., Article 13(2).

Ibid., Article 13(3) (a)–(f).

Ibid., n. 17.

Kong 2010, at p. 7.

U.S. Model BIT 2012, Preamble. Noting that the parties have committed to the improvement of labour standards in the preamble paragraph, which expresses the goal to achieve the treaty objectives “in a manner consistent with … the promotion of internationally recognized labor rights.” However, the AFL-CIO disagrees that the BIT with China has value and has come out against it. It is argued, “[t]he current U.S. approach to BITs is unacceptably flawed, and if the U.S. pursues a BIT with China now, it is likely to cause further harm to U.S.-based producers and America’s working families”, see Drake 2013. Scott Flaherty, who notes that the AFL-CIO’s position is that the U.S. should not pursue a potential investment pact with China “because of China’s poor track record on labor rights and a dispute settlement system that may allow state-owned Chinese companies to challenge U.S. laws.”; see also Flaherty 2013.

U.S. Model BIT 2012, Article 13(4).

Ibid., Article 13. The BIT provides the following obligations regarding labour:

The Parties reaffirm their respective obligations as members of the ILO their commitments under the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up. The Parties recognize that it is inappropriate to encourage investment by weakening or reducing the protections afforded in domestic labor laws. Accordingly, each Party shall ensure that it does not waive or otherwise derogate from or offer to waive or otherwise derogate from its labor laws where the waiver or derogation would be inconsistent with the labor rights referred to in subparagraphs (a) through (e) of paragraph 3, or fail to effectively enforce its labor laws through a sustained or recurring course of action or inaction, as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory. For purposes of this Article, “labor laws” means each Party’s statutes or regulations, or provisions thereof, that are directly related to the following: (a) freedom of association; (b) the effective recognition of the right to collective bargaining; (c) The elimination of all forms of forced or compulsory labor; (d) the effective abolition of child labor and a prohibition on the worst forms of child labor; (e) the elimination of discrimination in respect of employment and occupation; and (f) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health. A Party may make a written request for consultations with the other Party regarding any matter arising under this Article. The other Party shall respond to a request for consultations within 30 days of receipt of such request. Thereafter, the Parties shall consult and endeavor to reach a mutually satisfactory resolution. The Parties confirm that each Party may, as appropriate, provide opportunities for public participation regarding any matter arising under this Article.

See generally Compa and Meyer 2010.

See ILO website on Free Trade Agreements and Labor Rights.

van Liemt 2004, at p. 18.

It provides, “[T]he obligations set out in Article 19.2, as they relate to the ILO, refer only to the ILO Declaration.” [emphasis added], see KORUS 2011, Article 19(2)(1) and n. 1. The ILO core Conventions themselves are not expressly referenced in Article 19.2. The ILO recognizes eight fundamental labour conventions, seven of which existed at the time that the 1998 Declaration was adopted. These conventions are as follows: the Forced Labour Convention, the Freedom of Association and Protection of the Right to Organise Convention, the Right to Organise and Collective Bargaining Convention, the Equal Remuneration Convention, the Abolition of Forced Labour Convention, the Discrimination (Employment and Occupation) Convention, the Minimum Age Convention, and the Worst Forms of Child Labour Convention.

ILO, European Free Trade Agreements, 2013; CBC News 2013; Cooper et al. 2011, at p. 19. The EU just concluded a new FTA with Canada (CETA), which may embrace additional ILO standards and have a more meaningful enforcement mechanism. The EU and the U.S. are in current negotiations for a new U.S. – EU FTA.

EU – South Korea FTA 2011, Article 13.4.

EU – Canada Comprehensive Economic and Trade Agreement (Leaked Draft and unconfirmed) 2011; Media Advisory, 2014; EU Secret Deals 2014.

EU – Canada Comprehensive Economic and Trade Agreement (Leaked Draft and unconfirmed) 2011, Dispute Settlement Provisions and Procedures, Section 33, Article 14, at 463 et seq.

EU – South Korea FTA 2011, Article 11.

Ibid., Article 13.

Ibid., Article 14.

Ibid.

Ibid., Annex III.

Ibid., Annex III, Article 4.1.

China FTA Network 2014.

China Internet Information Center 2012.

China FTA Network 2014.

China – ASEAN FTA 2002.

China – Singapore FTA 2008.

China – Singapore FTA 2008.

China FTA Network 2014.

Ibid.; Zhang 2014.

The agreement allows credits in each country so as to avoid double payments of social security costs, see Wang and Wei 2009.

U.S. Model BIT 2012, Article 13(3).

Milman-Silva 2009.

Right to Organise and Collective Bargaining Convention No. 98, Article 1(1).

Ibid., Article 2(2).

Ibid., Article 6.

The ratification dates can be found on the ILO Normlex website.

Contra, Coastal Florida Police Benev. Ass’n, Inc. v. Williams, 838 So. 2d 543 (Fla. 2003).

29 U.S.C.A. §§ 141 et seq. (1935).

356 U.S. 432, 349 (1958). Holding “the duty to bargain is limited to those subjects, and within that area neither party is legally obligated to yield … As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree within the statutory phrase, and permissive (or non-mandatory) subjects of bargaining, which fall within the aspect of the relationship between employer and the employees.”

Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 67 S. Ct. 1026, (1950). Stating that where the National Labor Board has consistently supervised labor relations in any given industry, it then has exclusive jurisdiction over any employer in that industry even if the Board has not yet exercised its powers over the particular employer.

See State v. Florida Police Benev. Ass’n, Inc., 613 So. 2d 415 (Fla. 1992); See also Branch v. City of Myrtle Beach, 340 S.C. 405, 532 S.E.2d 289 (2000).

State v. Delaware State Educational Ass’n, 326 A.2d 868 (Del. Ch. 1974). Holding that Public employees are not entitled to collective bargaining under common law.

State, Dept. of Admin. v. Public Employees Relations Bd., 257 Kan. 275, 894 P.2d 777, 100 Ed. Law Rep. 336 (1995); Cal. – City of Hayward v. United Public Employees, 54 Cal. App. 3d 761, 126 Cal. Rptr. 710 (1st Dist. 1976). Holding that public employees enjoy rights specifically granted by statute. Michigan State AFL-CIO v. Employment Relations Com’n, 453 Mich. 362, 551 N.W.2d 165, 111 Ed. Law Rep. 490 (1996).

U.S. Model BIT 2012, Article 13(3) and n. 17.

The ratification dates can be found on the ILO Normlex website.

[Constitution of the People’s Republic of China] 中华人民共和国宪法 (zhōng huá rén mín gòng hé guó xiàn fǎ), 1982, Article 35.

[Trade Union Law of the People’s Republic of China] 中华人民共和国工会法 (zhōng huá rén mín gòng hé guó gōng huì fǎ), 1992, Article 9.

International Trade Union Confederation 2012.

Qiu 2006. Noting in China, the unions consist of the All-China Federation of Trade Unions (ACFTU), local all-level federation of trade unions, sectoral unions and basic-level unions. [Trade Union Law of the People’s Republic of China] 中华人民共和国工会法 (zhōng huá rén mín gòng hé guó gōng huì fǎ), 1992 (as revised in 2001), Article 9.

Brown 2006; see also [Rules on Collective Contracts] 集体合同规定 (jí tǐ hé tóng guī dìng), 2003, Article 1; See [Labour Contract Law of the People’s Republic of China] 中华人民共和国劳动合同法 (zhōng huá rén mín gòng hé guó láo dòng hé tóng fǎ), 2007, Article 33 para. 1. Stating the Regulation on Collective Contract of PRC. established by the Ministry of Labour and Social Security further specifies every aspect of a collective contract, such as its negotiation procedure, its content, its approval, examination and dispute settlement. With all of these inclusions, it seems that Chinese labour law has recognized workers’ right to collective bargaining.

Forced Labour Convention No. 29, 1930. Requiring signatories to prevent the following forms of forced or compulsory labour: (a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; (b) as a method of mobilizing and using labour for purposes of economic development; (c) as a means of labour discipline; (d) as a punishment for having participated in strikes; (e) as a means of racial, social, national or religious discrimination.

Forced Labour Convention No. 29, 1930 and Abolition of Forced Labour Convention No. 105, 1957.

The ratification dates can be found on the ILO Normlex website.

See Clyatt v. U.S., 197 U.S. 207 (1905); See also U.S. v. Gaskin, 320 U.S. 527 (1944). Clarifying that the provisions of 42 U.S.C. § 1994 abolish peonage and prohibit anyone from holding or arresting a person and returning that person to peonage, or causing or aiding in the arresting or returning of a person to peonage. The provisions of 18 U.S.C. §§ 1581–1588 provide criminal penalties in connection with these and related practices. See Civil Rights Cases, 109 U.S. 3, 20 (1883). Noting The Thirteenth Amendment is self-executing and thus ancillary legislation is not required to abolish slavery.

See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); See also Levy v. Louisiana, 391 U.S. 68, 70 (1968); See also, Graham v. Richardson, 403 U.S. 365, 371 (1971).

29 U.S.C. and § 206. 29 U.S.C. § 216 stating any person who violates the requirements of the federal statute may be subject to damages, fines or imprisonment. 29 U.S.C. § 207 of the minimum wage law also allows for overtime pay. 29 U.S.C. § 207 of the minimum wage law also allows for overtime pay.

The ratification dates can be found on the ILO Normlex website.

ILO, The elimination of all forms of forced or compulsory labour, China.

[Labour Law of the People’s Republic of China] 中华人民共和国劳动法 (zhōng huá rén mín gòng hé guó láo dòng fǎ), 1994, Article 32. Noting that a worker may notify the employer of his decision to dissolve the labour contract at any time if the employer compels a worker to work by the use of force, threat or by means of illegally restricting personal freedom; [Criminal Law of the People’s Republic of China] 中华人民共和国刑法 (zhōng huá rén mín gòng hé guó xíng fǎ), 1979 (as revised in 1995 and 2011), Articles 41 and 43. Stating in addition, if an employer compels workers to work by use of force, threat or by resorting to the means of restricting personal freedom or insults, punishes physically, beats, illegally searches or takes workers into custody, the public security organ shall detain the persons responsible for less than 15 days or levy a fine or give a warning and, if the case is serious enough to constitute a crime, criminal responsibility is attached. According to the Chinese Criminal Code, where an employer, in violation of the laws and regulations on labour administration, compels its employees to work by restricting their personal freedom, if serious enough, the persons who are directly responsible for the offense shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and/or be fined.

ILO, The elimination of all forms of forced or compulsory labour, China: “Bonded labour” or “debt bondage” is the practice when traffickers or recruiters unlawfully exploit an initial debt the worker assumed as part of the terms of employment. See discussion in Human Trafficking.org.

“The bi-monthly session of the Standing Committee of the National People’s Congress (NPC) adopted a resolution to abolish legal documents on ‘laojiao’ (re-education through labor). The resolution nullifies a 1957 State Council decision on reeducation through labor, and a 1957 NPC Standing Committee resolution to adopt the State Council decision, likewise supplementary regulations from 1979. Reeducation through labor dealt with minor offenders whose crimes did not warrant full court proceedings. It allowed detention for up to four years without an open trial”, see Zhu 2013. According to Human Rights Watch, two parallel mechanisms of extralegal punishment may still continue: one for drug offenders and another for prostitutes and their clients. As with re-education through labor, the police mete out custody and education sentences without trial and with little chance for appeal which appears similar to re-education through labor, see Jacobs 2014. See also Asia Catalyst 2013.

ILO Recommendation No. 190, 1999. In determining the types of work referred to under Article 3(d) of the Convention [the “worst forms of child labour” definition], and in identifying where they exist, consideration should be given, as a minimum, to:

The ratification dates can be found on the ILO Normlex website.

Child Labor Bulletin 2007. The minimum age of 16 for particularly hazardous work under the FLSA is unique to agriculture; the minimum age for hazardous work in other sectors of the economy is 18.

Ibid.

Ibid.

ILO Recommendation No. 190, 1999, para. 3.

Non-agricultural work is usually dealt with by state law; see e.g., New York State Department of Labor. However, in agriculture, federal law prohibits minors under the age of 16 from being employed during school hours unless employed by their parent or a person standing in place of their parent; see Child Labor Bulletin 2007.

The ratification dates can be found on the ILO Normlex website.

[Provisions on the Prohibition of Using Child Labour] 禁止使用童工规定 (jìn zhǐ shǐ yòng tóng gōng guī dìng), 2002, Article 2.

Ibid., Article 6(1); see also Morley 2009 at p. 120. Under the regulation, employers that employ child labor are to be fined 5000 yuan (RMB) for every child laborer. Moreover, Article 11 also specifically criminalizes employing child labourers to work in a dangerous environment. However, when reading this article carefully, one may find certain problems. Article 11 provides as follows:

[Notice of the Supreme People’s Court, the Supreme People’s Procuratoral, the Ministry of Public Security and the Ministry of Justice on Issuing the Opinion Legally Punishing the Crimes of Abducting and Trafficking Women and Children] 最高人民法院、最高人民检察院、剬安部、司法部印发《关于依法惩治拐卖妇女儿童犯罪的意见》(zuì gāo rén mín fǎ yuàn, zuì gāo rén mín jiǎn chá yuàn, gōng ān bù, sī fǎ bù yìn fā “guān yú yī fǎ chéng zhì guǎi mài fù nǚ ér tóng fàn zuì de yì jiàn”), 2010.

The ratification dates can be found on the ILO Normlex website.

Hawai’i Rev. Stat. Chapter 378. In addition to federal laws, state laws often provide additional and more liberal coverage. For example, Hawai’i covers sexual identity and reaches below 40 to any age.

The ratification dates can be found on the ILO Normlex website.

[Labour Law of the People’s Republic of China] 中华人民共和国劳动法 (zhōng huá rén mín gòng hé guó láo dòng fǎ), 1994, Chapter 7, Articles 58–64.

[Law on the Protection of Rights and Interests of Women] 中华人民共和国妇女权益保障法 (zhōng huá rén mín gòng hé guó fù nǚ quán yì bǎo zhàng fǎ), 1992. Despite Chinese law, however, groups like Human Rights Watch and the IFTUC, have alleged that, in China, there is still widespread discrimination against women in the workplace, and that there is a significant gender pay gap. Moreover, these same groups allege that, in China, there is still rampant discrimination in the workplace against migrant workers, and between workers based on their urban or rural orientation; supra, IFTUC.

This raises the issue of the equal treatment of migrant workers and ethnic minorities. See Brown 2006. Also see Zhu and Dai, 2002.

While ratification of ILO Conventions does bring with it reporting and inspection responsibilities, FTAs and BITs can also bring their own enforcement mechanisms to bear on the standards of “un-ratified” conventions. Unfortunately, enforcement under the latter has not yet shown itself to be a model for compelling compliance.