between international trade and social rights.
After this reconstruction of the framework of social provisions in the latest FTAs, we can observe that it is difficult to see a real enforcement mechanism in order to oblige parties to respect all the important commitments taken in terms of social rights. If it is true that, both for CETA and EPA (as for the TTIP), labour provisions have widened and deepened compared to the past, but we need to observe that they are mostly cooperative and non-binding provisions.
FTAs use an aspirational language, and for this reason labour provisions risk to lack of an effective remedy to labour violations or of a valid deterrent. This is, unfortunately, in line with the EU traditional policies.
As a matter of fact, the only agreement where economic and clear sanctions are imposed, is the EU Generalised System of Preferences (GSP), an exemplar model of positive linkage between international trade and social rights in the European external action64: in this context, any of the
GSP Industrialized Countries, on request by the UN, have granted a preferential and non-reciprocal treatment to developing Countries in matter of trade exchanges. Such scheme, (GSP), by granting a facilitated access in the European Market to commodities coming from weak territories, represents a mechanism of distributive justice in the system of international trade with a general extent.The EEC has matter-of-factly granted since 1971, notwithstanding the GATT-WTO normative that provided for a unique system of preferences, some generalized tariff preference for industrial finished and semi-finished commodities coming from developing Countries, authorizing a more advantageous customs treatment compared to the one normally practiced, and consisting in the total or partial elimination of import duties.
Twenty years after the concession of the above-mentioned measure, the Council, being aware of the positive results achieved in the course of time, has adopted the Reg. 3281/1994. In the new regulation, the need to co-relate international trade with the respect of fundamental social rights overwhelmingly emerges and, in this sense, the tariff-related instrument shows great potentialities. On the same line are the following regulations 65.
Initially, there were two types of measures provided by the 1994
64 Perulli A., Clausola Sociale, Enciclopedia del Diritto, Giuffré, 2014, vol. VII, pp. 187-211. 65 Reg. n. 1154/1998, Reg. n. 2810/1998, Reg. n. 2501/2001, Reg. n. 980/2005, Reg. n.
Regulation.
First of all, the advantages are to be temporarily, totally or partially cancelled in case the Country involved resorts to forced labour, in accordance with the ILO’s Conventions on the matter 66, as well as in case
of exportation of commodities produced in jail. The temporary cancellation is not automatic, but it will be active after a procedure that may be activated through a report of the violation to the Commission.
If, in this case, we are dealing with a negative sanction, the second measure provided by the Regulation is, on the contrary, a promotional sanction, which consists in the concession of a special “regime of stimulation”, whose aim is to promote the addressee Countries in the adoption of more advanced social policies.
Starting from 1st January 1998, following the Reg. n. 1154/98, some
additional preferences was granted (equal to an extra 20%) to those Countries already admitted to the GSP, which prove to have adopted – and actually implemented – the eight fundamental Conventions of the ILO
Even though the GSP is unilaterally adopted by the EU, it is important to underline that the Council grants the potential extra-measures on the basis of criteria that must be acknowledged and shared at international level, as well as by reason of a report of the Commission that keeps into account the results of the surveys carried out by the ILO, the WTO and the OECD.
In this way, we have the promotion of an unprecedented mechanism of control based on the cooperation among several international organizations, which could be considered as the potential backbone of a system of promotion of any hypothesis of future insertion of social clauses in trade treaties. Given the specific reference to the ILO’s Conventions, the European System results as particularly virtuous and inclined towards an international trade policy complying with fundamental social rights.
The following Regulation (EC) n. 732/2008 of the Council 67 has then
simplified the special regime of subsidization, by substituting the three previous regimes with the current two: the special regime in favour of developing Countries and the special subsidization regime of “sustainable development and good governance”, acknowledged only to the Countries that have “ratified and effectively applied” the Conventions referring to the attachment III (among which we have the 8 ILO’s fundamental Conventions) and that commit themselves to “maintain the ratification of the Conventions and of the relative laws/measures of implementation and
66 1930 Convention n. 29 on forced and mandatory labour; 1957 Convention n.105 on the
abolition of forced labour.
to accept periodical assessments and re-examinations of the application, complying with the provisions of implementation of the ratified Conventions”.
Actually, Regulation n. 978/2012 68 provides for a general regime, and
two special regimes, that is to say the special regime of subsidization for sustainable development and good governance and the one in favour of less developed Countries.
The first special regime (GSP+) is an agreement of particular subsidizations for sustainable development and good governance that recognizes total exemption from customs tariffs for commodities entering the EU’s market for Countries that have ratified and implemented a series of Conventions of the ILO and the UN in matter of labour and human rights, and in matter of environment and of good governance, and that accept a constant monitoring.
The second special regime, which provides for the cancellation of customs tariffs, is called EBA, which stands for Everything But Arms: such program, reserved to less developed Countries, guarantees the total cancellation of customs tariffs for all products coming from such Countries, except for weapons.
With this new Regulation we see the concentration of tariff preferences “on the support to developing Countries more in need in the field of development, trade and finance”.69. The goal is to strengthen the
subsidizations for the respect of fundamental human and labour rights, the environment and good governance norms through the GSP system, increasing its predictability, transparency and stability: in this sense, the length of the programme is increased from 3 to 10 years, with the exception of the EBA, which has no deadline.