I’ve been reading with interest increasingly vocal calls to introduce more progressive strategies in international economic law. One of the more intriguing: giving labor unions the same right to sue governments that foreign investors enjoy.

Philosophically, I’m not opposed to the notion that labor unions have interests that could and perhaps should be protected under a modern international dispute framework.  After all, investment treaties by definition privilege capital over, well, pretty much everything that is not carved out by the signatory states, including labor.  And this can, and likely does, help contribute to unbalanced, and in some instances unsustainable economic growth.

But I’m not sure exactly how it would work. Investment treaties are designed to protect international and globally mobile actors. Labor provisions giving unions standing to sue would by contrast have to be designed to protect actors that, though occasionally entering into coalitions with one another, are largely domestic actors. Thus a bilateral (investment) treaty with labor provisions giving standing to sue for violations of the treaty terms does not immediately seem like it would move the ball forward for people interested in wealth inequality or the impact of trade on jobs.

One possibility, I suppose, could be that labor unions could act internationally by suing governments that attract capital (or businesses) by means of policies that violate agreed upon rules. Under this model, if country X and Y enter into a BIT, and then country X adopts (or maintains) policies that attract capital because of its allowance of child labor or poor environmental standards, perhaps affected groups could sue for the value of their jobs. This kind of provision could then be embedded in a BIT, as opposed to a free-standing treaty.

This approach would, interestingly, require “more” not “less” international economic law. Rules of the road for labor would have to be agreed upon—in likely greater detail than was the case under the TPP—along with metrics for judging compliance and enforcing labor-related judgments.   Moreover, radical overhauls of existing dispute settlement mechanisms would be necessary.  Perhaps most fundamentally, dispute panels would have to be staffed with individuals with expertise in not only investment, but also labor law and possibly employment.

If anyone has other ideas, I’d love to hear your thoughts. @ChrisBrummerDr

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