International and Transnational Labour Law

• Pages: 119-218

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Chapter : International and Transnational

LabourLaw

: CONNECTING LABOUR AND EMPLOYMENT LAW AT HOME AND ABROAD

Chapter  has outlined the massive transformation underway in the world of work that work-

ers in Canada are now experiencing. This transformation is one that spills over national

borders; one that implicates work and workers all over the world; and one that engages

questions about the nature, content, and adequacy of labour and employment law across

governance levels.

More than twenty years ago, Ethan Kapstein, in “Workers and the World Economy,” made

the following observations about the fate of workers under conditions of globalization:

The global economy is leaving millions of disaected workers in its train. Inequality,

unemployment, and endemic poverty have become its handmaidens. Rapid techno-

logical change and heightening international competition are fraying the job mar-

kets of the major industrialized countries. At the same time systemic pressures are

curtailing every government’s ability to respond with new spending. Just when work-

ing people most need the nation-state as a buer from the world economy, it is aban-

doning them. This is not how things were supposed to work. The failure of today ’s

advanced global capitalism to keep spreading the wealth poses a challenge not just

to policymakers but to modern economic “science” as well. For generations, students

were taught that increasing trade and investment, coupled with technological change,

would drive national productivity and create wealth. Yet over the past decade, despite

a continuing boom in international trade and nance, productivity has faltered, and

inequality in the United States and unemployment in Europe have worsened. . . . It

is hardly sensationalist to claim that in the absence of broad-based policies and pro-

grams designed to help working people, the political debate in the United States and

many other countries will soon turn sour. Populists and demagogues of various stripes

will nd “solutions” to contemporary economic problems in protectionism and xeno-

phobia. Indeed, in every industrialized nation, such gures are on the campaign trail.

Growing income inequality, job insecurity, and unemployment are widely seen as the

ipside of globalization. That perception must be changed if Western leaders wish to

maintain the international system their predecessors created. After all, the fate of the

global economy ultimately rests on domestic politics in its constituent states. . . . The

world may be moving inexorably toward one of those tragic moments that will lead

future historians to ask, why was nothing done in time? Were the economic and policy

elites unaware of the profound disruption that economic and technological change

CHAPTER : INTERNATIONAL AND TRANSNATIONAL LABOURLAW



were causing working men and women? What prevented them from taking the steps

necessary to prevent a global social crisis?

[Republished with permission of the Council on Foreign Relations, from Ethan Kapstein,

“Workers and the World Economy” () : Foreign Aairs ; permission conveyed

through Copyright Clearance Center, Inc.]

A premise of this chapter is that changes in the world of work and the challenges to labour

and employment law are interconnected on multiple levels. Decisions about work and the

law of work in one jurisdiction may well have profound eects in others.

Kerry Rittich & Guy Mundlak, “The Challenge to Comparative Labor Law in a Globalized Era” in

Matthew W Finkin & G Mundlak, eds, Comparative Labor Law (Cheltenham, UK: Edward Elgar

Publishing, )  at –

Labor law, both in general and as a subject of comparison, is traditionally situated within

the connes of the nation state. Scholars of labor law typically begin with the premise

that markets and production are socially and politically embedded, that regulation is cen-

trally co-ordinated by the state or by territorial entities within it, and that collective bar-

gaining is conducted according to rules prescribed by the state that cover the spectrum

of domains from the enterprise to the national level. Where the borders of the state are

drawn, however, the system of labor law reaches its limits. It is the premises of the West-

phalian state system that have made it possible to compare the dierent legal solutions

that have been devised within nation states to deal with problems such as the ‘ssuring’

or ‘vertical disintegration’ of enterprises and their consequences for workers’ rights and

power. However, it is precisely these premises that are now eroded and unstable.

When globalization is integrated into the story, framing the interaction between law

and social-economic forces engages new diculties of scale, causality and scope. The ver-

tical disintegration of production permits employers to exploit the possibilities of lower

labor costs in other jurisdictions, including those that come about because of dierences

in regulatory standards. But it also produces new regulatory conundrums. To the extent

that vertical disintegration results in supply chains and production that cross borders, it

may no longer be clear which national laws govern the workplace. Once production crosses

borders (‘o-shoring’), national regulatory solutions often become elusive and inadequate,

and responses to the problematics of networked production may well extend beyond labor

law as we have known it. Similarly, increased ‘in-shoring’ of, or reliance on, migrant labor

often implicates elds such as citizenship and immigration law that lie beyond the trad-

itional scope of labor and employment law. The globalization of production also imports

new actors and activities into the norm generation process. Along with traditional eorts

to inuence the shape and content of both local and national law, employers may engage

in law-shopping and regulatory arbitrage, seeking at once to identify and rely on, and,

along with NGOs, to inuence the laws governing their activities in ways that are con-

genial to their interests and objectives. The eects of these interventions, moreover, can

sometimes be identied in territories that are remote from where regulatory decisions are

actually made. Thus, there may be little or no overlap between the labor market or com-

munity of workers and employers aected by legal and labor market norms, the actors and

Connecting Labo ur and Employment Law at Home and Abroad | :



institutions that author such norms, and the location where their broader social eects are

experienced. Under these circumstances, it is hardly surprising that it is now more di-

cult for the agents of labor to inuence the shape and content of the law of the workplace.

[Reproduced with permission of the Licensor through PLSclear.]

Some problems at work may be best addressed by international and/or transnational regulatory

solutions. As you will see, some initiatives may implicate private actors, such as rms or indus-

try groups or involve public and private action jointly. And workers may be profoundly aected

by trade agreements as well as decisions about monetary and scal policy. It becomes neces-

sary to study labour law with an eye to the transnational, understood at least “to include all

law which regulates actions or events that transcend national frontiers”: Philip C Jessup, Trans-

national Law (Storr’s Lectures on Jurisprudence) (New Haven: Yale University Press, ) at .

Adelle Blackett & Anne Trebilcock, “Conceptualizing Transnational Labour Law” in Adelle

Blackett & Anne Trebilcock, eds, Research Handbook on Transnational Labour Law (Cheltenham,

UK: Edward Elgar Publishing, ) 

Some relevant changes include heightened global interdependency, technological innova-

tion, labour migration, increasing informalization of work, and the persistence of poverty,

discrimination and inequality along fault lines of historical marginalization. Today, thick

webs of contractors structure global production chains, constructing yet obscuring links

between workers in the global South who produce products they cannot aord to buy,

and workers in the global North who both market and consume goods they no longer pro-

duce. The transnational enterprises through which markets operate are able to control

the means of production, transform that control into power, and exercise it transnation-

ally to compel workers to live and produce by their norms. Similarly complex networks of

labour brokers recruit workers from an intricate range of regional peripheries, to provide

a host of activities recharacterized as services. They may work in ac tively informalized

agricultural production, building construction or care reproduction servicing global cit-

ies, shaped in the light of — rather than in opposition to — a global and regional architec-

ture structuring the provision of services transnationally. Such phenomena reect and

adapt a Westphalian notion of state sovereignty, and the highly dierentiated rules gov-

erning the conditions of movement of products, services and capital.

[Transnational labour law (TLL)] builds on a recognition that liberal states have made

the global era possible: what was conceived as national becomes denationalized in a pro-

cess propelled by actors and sources of authority that proliferate in territory beyond the

decentred state. The changes afoot have led to substantive rethinking of the spatial and

temporal conguration of the global regulation of work. They challenge deeply rooted

assumptions about law, labour and the transnational. And they shift the focus to alter-

nate actors. Workers in particular, as principal actors seeking to refocus global govern-

ance’s direction, are required to reimagine if not the nature then certainly the focus of

their justice claim. TLL therefore does not reect a rigid reclassication of the eld of

labour law, or international (labour) law. TLL rather reects a recognition, captured by

Trubek, that: there is a missing pillar in the architecture of global governance.

[Reproduced with permission of the Licensor through PLSclear.]