bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Minimum Wage as a Matter of Tangible Human Dignity: A Comparative Constitutional Law Analysis
Authors: Choko Maude , Martin Isabelle 
Published: April 2022

The right to human dignity has been applied to numerous employment issues: loss of reputation, privacy, sexual and psychological harassment.Human dignity has less often been invoked in litigation involving tangible working conditions such as the minimum wage. These questions have traditionally been dealt with by employment legislation rather than human rights law. This article argues that minimum wage issues are also a matter of human dignity. In this respect, the adequacy and sufficiency of minimum wage regulations could be assessed in the light of the right to human dignity. In particular, we will examine minimum wage regulations in Quebec (Canada) with regard to the right to human dignity as laid down in the Quebec Charter of Human Rights and Freedoms. In order to substantiate the relationship between the minimum wage and human dignity, we intend to make use of comparative constitutional law. We will draw on the interpretation and application of human dignity developed in international law as well as in four jurisdictions: Quebec, Canada, Israel and Germany. Although Quebec and Canadian case law has applied human dignity to work issues, they have not developed its application to tangible working conditions. By comparison, international law, together with Israeli and German law, have developed the tangible dimension of dignity more extensively. These sources of law may help address the lack of attention on the part of the Quebec courts to the tangible dimension of dignity at work. We then turn to the Quebec minimum wage regulations to evaluate their sufficiency and adequacy in the light of the right to human dignity.
Reconstructing Labour Law Actors beyond Employment
Authors: Yun Aelim 
Published: April 2022

This article argues that the nature of precarious work can be grasped as the disintegration of the employment relationship which was a historical compromise concerning the distribution of cost and risks between capital and labour, in particular, along Fordist corporate boundaries, while analysing how the formal-and-informal division of labour has changed, corresponding to the change of power relations between labour and capital, focusing on Korean cases. Many legal systems fail to identify who should take responsibility for workers’ rights, by viewing individual corporate entities separately. However, labour law actors – the ‘worker’ and the ‘employer’- should be identified not in a single workplace but with reference to the whole value chain and labour market. In conclusion, it is argued that it is essential to enlarge collective labour rights, and in particular, to secure freedom of association for precarious workers beyondemployment boundaries.
Sex Work Regulation, Anti-trafficking Policy, and Their Effects on the Labour Rights of Sex Workers in Germany
Authors: Thiemann Inga K. 
Published: April 2022

This article provides an analysis of regulatory approaches to sex work, the status of sex workers’ labour rights, and the conflation of sex work and human trafficking, with reference to the example of Germany. It assesses the strengths and weaknesses of Germany’s approach to the regulation of prostitution and the ways it has been influenced by international debates challenging the status of sex work as work, as well as concerns about human trafficking. It analyses the Prostitution Act 2002 (ProstG), and the Prostitute Protection Act 2017 (ProstSchG), and their effects on the rights and working conditions of sex workers, as well as their aim of improving the safety of vulnerable sex workers and reducing the level of human trafficking and exploitation in the German sex industry. In particular, the article considers the impact of this legislation on those working in the sex industry, especially migrant women and those at risk of exploitation. Through its analysis of the existing approach to sex work in Germany, the direction of reform and the absence of a labour-rights approach to the regulation of sex work and the prevention of trafficking, the article highlights the fact that even a country that is -in principle - willing to accept sex work as work, has failed to grant labour rights to sex workers. The article argues that the Prostitute Protection Act has in some ways increased the vulnerability of sex workers rather than promoting their safety. In addition, it is argued that legislators should consider labour protection and labour rights as an alternative means of protecting sex workers, rather than (re)criminalizing aspects of sex work in the name of ‘protecting’ women by means of prohibition or control. Adopting a labour-rights approach rather than paternalistic approach would have the potential to bring about far-reaching reform of the relevant legislation both in Germany and internationally.
Sex Work, Human Trafficking, Labour Rights, Criminalization, Prostitution, Sex Work as Work
‘Masters and Servers’: Collective Labour Rights and Private Government in the Contemporary World of Work
Authors: De Stefano Valerio 
Published: April 2022

This article explores the issues of subordination and authority in the contemporary world of work as they are exacerbated by new forms of work-surveillance that track emotions and mental states of workers by means of artificial intelligence, predictive algorithms and big data. It discusses subordination in contemporary work arrangements, highlighting how new technologies and business practices expand hierarchy and forms of private government beyond the scope of the employment relationship. It explores some of the technologies and practices that magnify and expand managerial powers to unprecedented levels, by tracking and strictly monitoring workers’ emotional and mental states. It also highlights how collective labour rights represent the best counterbalance to restrain these practices and curb modern forms of private government in the workplace. It concludes by discussing how the distinction between the traditional functions of collective rights, the ‘civil liberty’ and the ‘industrial’ function is increasingly blurred, arguing that an expansion of the personal scope of collective rights is crucial in this regard.
Workplace Surveillance, Artificial Intelligence, Predictive Algorithms, Big Data, Platform Work, Surveillance Capitalism, Subordination, Contract of Employment, Collective Labour Rights
On Labour Representativeness: The Hidden Components of the Human Right to Freely Associate in Trade Unions
Authors: Mundlak Guy 
Published: April 2022

The freedom of association in trade unions is accorded a special status in the international covenants on human rights, in ILO Conventions and in national constitutions. Moreover, trade unions are usually the sole subjects of special privileges for negotiating collective agreements, consultation and permissible industrial action. Human rights and constitutional litigation usually focus on removing obstacles from individuals’ choice to associate and on the scope of the positive right to freely associate. However, there are other fundamental aspects of the right that are more covert, which are designated as its ‘hidden components’. These include the rules regarding representative status, which crudely prescribe the relationship between trade unions and their membership. Despite the prevalence of requirements for representativeness in all national industrial relations systems, the variations are immense. This article probes into the nature of representativeness, displaying its significant effect on the ability of workers to negotiate, on the capacity of trade unions to achieve collective agreements, and on the distributive effects of such agreements. The article concludes that the constitutional dimension of representativeness must be considered, demonstrating rare instances of robust constitutional challenges and directing attention to the seemingly more mundane forms of response, legal or extra-legal, that actually shape the course of their incremental legal development.
Labour Law, Trade Unions, Representation, ILO, Comparative
A Behavioural Ethics Approach to Employment Law and Workplace Norms
Authors: Nadiv Neta , Feldman Yuval 
Published: April 2022

The field of behavioural ethics seeks to clarify how people behave when confronted with ethical dilemmas. It has identified and analysed numerous mechanisms by which people may engage in unethical and illegal behaviour without fully recognizing its implications. In the field of employment law, which focuses on the interaction between employers and employees, the subtle mechanisms which may underlie people’s decisions to behave unethically are especially relevant, but have not been the subject of significant study. The question examined here is how applying behavioural ethics to employment law can cast light on some current employment law issues, including compliance. To this end, the article identifies four contexts in which the law can be improved: ensuring protection for employees when they are under pressure to act in a manner contrary to their personal ethical standards; clarifying the measures to prevent workplace bullying; creating clear rules in the case of workplace changes such as working from home, which gives rise to expenses for the employee; and ensuring protection against small daily violations which are sometimes considered too negligible for enforcement purposes. The article argues that the development of employment law can benefit from taking behavioural ethics into account.
Behavioural Ethics, Employment Law, Unnoticed Harms
Labour Inspections in Post-Soviet Countries: Reform or Collapse?
Authors: Lyutov Nikita , Voitkovska Ilona 
Published: April 2022

This article examines the policy of limiting the powers and resources assigned to the labour inspectorate in ten post-USSR republics: Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine, and Uzbekistan. This policy is pursued in all ten countries in the name of boosting economic efficiency and reducing regulatory constraints on business. A significant number of limitations on labour inspections is identified, some of them in direct contradiction with the requirements of the priority International Labour Organisation (ILO) Conventions on Labour Inspections, No. 81 and 129. Some of the restrictions do not directly contradict the requirements of these Conventions, but their inadequate application in combination with certain restrictive measures leads to significant non-compliance with international labour standards. It is argued that international institutions such as the World Bank and the International Finance Corporation (IFC) have advocated this decline in inspections. The most significant restrictions on labour inspections in the region include limiting inspections to occupational safety and health matters; the legal requirement for labour inspectors to give prior warning to employers about the inspection, or to obtain approval for the inspection from other state authorities; and the requirement for a complaint to be made by workers as a necessary precondition for carrying out an inspection.
Labour Legislation, International Labour Law, Labour Inspection, Law Enforcement, Post-Soviet Countries, Compliance, Occupational Safety and Health
The 2016 European Union International Procurement Instruments Amendments to the 2012 Buy European Proposal: A Retrospective Assessment of Its Prospects
Authors: Dawar Kamala 
Published: April 2022

This article assesses the European Commission’s 2016 Amended Proposal for ‘a Regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries’.1 The proposed regulation aims to improve the conditions under which European Union (EU) businesses can compete for public contracts abroad. It provides the EU with leverage through imposing a price penalty on any tender for an EU procurement which is originating in a country that does not offer the EU ‘reciprocity’ in access to its procurement markets. After introducing the 2016 International Procurement Instrument (IPI) Amended Proposal, the article examines the legal framework of the Amended Proposal with reference to its evolution from the European Commission’s original 2012 proposed regulation. The analysis then turns to the concept of reciprocity, which serves as the justificatory basis of the Commission’s proposal before assessing the 2016 Amended Proposal’s compatibility with the EU’s commitments under the World Trade Organization (WTO), including most notably the World Trade Organization’s Government Procurement Agreement (WTO GPA), the General Agreement on Tariffs and Trade (GATT) and the Agreement on Subsidies and Countervailing Measures (ASCM). This assessment concludes by questioning the compatibility of this proposed regulation with the EU’s obligations under the WTO as well as the objectives of the EU procurement rules, underpinned by Treaty principles.
India’s Dilemma in Negotiating Rules on E-commerce in the WTO
Authors: Kaushik Atul 
Published: April 2022

Seventy-six WTO Members, including all the major economies except India and South Africa have agreed to commence negotiations on e-commerce. The growth of e-commerce in India is among the fastest in the world and Indians see an opportunity of leapfrogging the technological and infrastructural barriers to become a leading e-commerce economy.
Apart from the moratorium on customs duties on electronic transmissions, not much progress has been made on trade rules relating to e-commerce in the WTO. Now with negotiations agreed upon by a large number of its Members, India has to take a call whether to join in or await a prepared text and accept or reject it. Trade rules are believed to be technologically neutral, and a number of existing agreements have rules that may apply to ecommerce, or give guidance for the way e-commerce shall be conducted under the WTO. India has also taken many steps to install necessary regulatory framework for ensuring a level playing field for e-commerce players at the national level. Still India is in a dilemma whether to join the negotiations. It is time for it to take the call now.
The Rule of Precedent and the Role of the Appellate Body
Authors: Bacchus James , Lester Simon 
Published: April 2022

The crisis over appointments to the WTO's Appellate Body has been one of the most challenging conflicts the GATT/WTO system has ever seen, threatening to destroy a core institution of the world trading system. The Appellate Body has played a valuable role in dispute settlement, by providing a coherent set of jurisprudence to guide WTO Members as to the meaning of WTO law. The Appellate Body does not create formal "precedent," but nevertheless its reasoning in past cases serves informally to create expectations as to the meaning of the WTO agreements. The United States has objected to the Appellate Body's treatment of past rulings, arguing that the Appellate Body has elevated these rulings to "binding precedent." However, a careful reading of the language used by the Appellate Body to describe its views indicates that the Appellate Body has not done so. The U.S. objections are one part of its series of concerns justifying its blocking of appointments. Losing the Appellate Body over this dispute would be devastating to the WTO, and engagement on these issues must continue in good faith in order to find a resolution.
WTO Dispute Settlement, Appellate Body, Panels, Precedent, StareDecisis, Cogent Reasons, Rule of Law, Walker Principles
The EGA Negotiations: Why They Are Important, Why They Are Stalled, and Challenges Ahead
Authors: de Melo Jaime , Solleder Jean-Marc 
Published: April 2022

Decade-long negotiations on the reduction of tariffs on Environmental Goods (EGs) at the Doha Round using a list approach to define EGs, failed to produce an agreement. In July 2014, fourteen countries entered plurilateral negotiations under the ambit of the WTO. If successful, the resulting Environmental Goods Agreement (EGA) would have eliminated tariffs on a list of EGs. These negotiations broke down in December 2016. This article documents this episode and the mercantilistic behaviour of negotiators that prevented agreement on an extended list of EGs, a prerequisite for a meaningful outcome for the environment.
A conclusion of the EGA negotiations under the current narrow agenda focusing only on tariffs could help build trust to go further but would be insufficient to help mitigate climate change, even if a critical mass were to be reached allowing extension of the tariff reductions to all WTO members. This is because average tariffs for the negotiating group are too low (1.5%). Extending the agenda to include Non-Tariff Barriers (NTBs) and Environmental Services (ESs) remains the acid test for an EGA to address meaningfully the climate change challenge. Reaching agreement on how to tackle NTBs and ESs will require delegating negotiating authority to independent scientific experts and probably modifying WTO rules.
Aligning the trade and climate regimes will call for transformational changes in the WTO contract to take into account transnational externalities and public goods. This would amount to a shift from the present negative contract where countries are free to choose their policies so long as they do not discriminate between domestic and imported goods to a positive contract where WTO members have to pursue similar climate-friendly policies.
Environmental goods, Environmental services, EGA, WTO, trade and environment,
Climate Change as a Security Risk: Too Hot to Handle?
Authors: Van Vaerenbergh Pieter , Hazarika Angshuman 
Published: April 2022

Climate change has been considered as a security risk in political discussions. There has however been minimal discussion on whether climate change would qualify as a ‘national security issue’ in terms of the provisions of the GATT or international trade and investment agreements. This becomes crucial since countries across the globe have undertaken a number of measures to deal with the impacts of climate change or to fulfil their commitments with international treaties on climate change. In the future, states may be required to undertake measures to tackle sudden dangers arising from climate change which may threaten their territories or population. This gives rise to a strong possibility that countries may seek to justify these measures as being taken under the guise of a security risk which permits unilateral action. This article seeks to find out whether the ‘security exception’ clause in GATT (as interpreted in Russia – Traffic in Transit) and similar provisions in international trade and investment agreements could be used to justify measures taken to mitigate or tackle situations related to climate change, which then would be determined as a national security risk.
Climate change, security exception, GATT, investment agreements, FTAs, Article XXI GATT
Trade Remedy Rules for Digital Services: Inapplicability of GATT-type Safeguard Rules
Authors: Kim Nayung 
Published: April 2022

Digitalization considerably complicates the application of previous trade remedy norms to the new and expanding digital services trade, and there is a need to reprioritize and restructure the existing framework to reflect this difference. Emergency safeguard is an essential element in the trade regime, but the classic concept of GATT-type safeguard measures that is based on a dichotomy of tariff and nontariff barriers and clear-cut rules between goods and services are not suitable for regulating the expanding digital services transactions where barriers tend to be much more diverse and less obvious. Hence, a new trade remedy framework must incorporate the elements of convergence, interconnectedness and externality, while taking a sectoral approach, as generic rules on trade remedies that cater to all possible scenarios and sectors are no longer suitable in these realms. It must prioritize rules-making on subsidies and domestic tax schemes, while also considering for issues specific to the digital features such as data flow restrictions and their implications.
Digital trade, digital services, trade remedy rules, emergency safeguard, GATT
Can the Appellate Body Be Saved?
Authors: Maruyama Warren H. 
Published: April 2022

The ‘Walker Paper’ represents a commendable effort to find middle-ground on the World Trade Organization (WTO) Appellate Body, but does not address the US concerns about the Appellate Body’s overreaching in antidumping, countervailing duty, and General Agreement on Tariffs and Trade (GATT) Article XIX ‘escape clause’ disputes, and instead seizes on a series of half-hearted fixes to the long list of concerns in US Trade Representative’s (USTR’s) ‘Report on the Appellate Body of the World Trade Organization’. US concerns about overreaching date back to the Bush 43 and Obama Administrations and are rooted in the Appellate Body’s ‘zeroing’ line of cases. The concerns rest on the conviction of US trade officials who participated in the Uruguay Round negotiations and later served in the Bush 43, Obama, and Trump Administrations, that there was never a WTO agreement to abolish ‘zeroing’. This view was shared by the WTO Secretariat and WTO Panels and underpinned the contentious, decade-long impasse between USTR, the WTO Secretariat, and WTO Panels on the one hand, and the Appellate Body and Appellate Body Secretariat on the other. While the Appellate Body’s overreaching has multiple sources, one is its dismissive approach to negotiating history under Article 32 of the Vienna Convention, and obsessive reliance on the Oxford English Dictionary as a main source of meaning in interpreting the WTO Agreements. Had the Appellate Body taken a more respectful look at the Uruguay Round negotiating history, it would have found no support for efforts to read a broad prohibition on zeroing into terms that dated back to the Kennedy Round Antidumping Agreement, Tokyo Round Antidumping Code, and GATT 1947. The Appellate Body’s overreaching also appears to stem from hubris, as some Appellate Body Members have sought to make their mark on international jurisprudence or serve as saviours of the WTO system. While some in Geneva are clearly hoping the US concerns will disappear once the Biden Administration takes office, these concerns predated Ambassador Lighthizer by over a decade and are shared by both Republicans and Democratic Members of Congress. Accordingly, even if the new Administration were to seize on some variant of the Walker paper as an excuse to placate US allies and trading partners, it’s unlikely to offer a lasting solution, since the same problems will likely recur without serious systemic and structural reforms.
World Trade Organization, WTO, Appellate Body, Dispute Settlement Understanding, Dispute Settlement, Antidumping Agreement, Zeroing