Evolution of the Chinese Labor Problem in Trade and Investment Agreements: Notional Gap and Normative Necessity for Accession to CPTPP
China’s perspective on labor regulation has impeded its integration into the global market. Although evidence indicates an attempt to assimilate to the dominant global markets’ perspectives, major challenges in labor exist. This article will assess the manner and likelihood that China will overcome these challenges to join critical trade agreements and partnerships, with the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) as the latest analytical sample. The main issue is how China can prove its compliance with CPTPP labor provisions rather than bargaining over the division of relevant rights or obligations. China’s linkage efforts with free trade agreements and bilateral investment treaties since 2005 have used some initial normative labor elements, such as the “not lowering requirement,” the “effective domestic enforcement,” and the use of a “panel of experts in inter- governmental labor disputes settlement” for negotiation. However, critical divergences on the interpretation of freedom of association, effective recognition of collective bargaining, and the right to strike, are predicted to dominate the accession negotiation in labor topic. Further, these are ideas that are rooted in notional gaps that have formed for years from the dynamic interaction between China and external parties under the framework of the International Labor Organization (“ILO”), the World Trade Organization (“WTO”), and trade and investment agreements. These gaps occurred through the difference in viewing the freedom of association, the effective recognition of collective bargaining, and the right to strike as “politically sensitive issues [versus] trade-related social issues”, “internal affairs [versus] international labor cooperation” or “priority of domestic regulation [versus] with C87 and C98 as the minimum basis of international legitimacy for trade cooperation.” Based on these challenges, critical points for China’s accession negotiation in labor topics as an Aspirant Economy of CPTPP lie in whether the implementation of required provisions will be before or after accession, and a possible choice of compliance strategies that emulate the Vietnamese mode or Mexican mode. Recognizing that the final result is up to the complicated compromise and consensus between China and the eleven original Signatories of CPTPP, it is an opportunity for the accession negotiation to act as a lever to push forward China’s bottom-up labor law reform.
Evolution of the Chinese Labor Problem in Trade and Investment Agreements: Notional Gap and Normative Necessity for Accession to CPTPP,
46 Fordham Int'l L.J. 473
Available at: https://ir.lawnet.fordham.edu/ilj/vol46/iss4/2