 Good afternoon. My name is Camille Cameron, and I'm the dean of the Schulich School of Law. I will begin by acknowledging that we're assembled here today for this event on traditional Mi'kmaq land. It's my pleasure to extend a warm welcome to each one of you and to introduce this eighth Innis Christi lecture in labor and employment law. And I'll begin, if I may, with a few words about the namesake, Professor Innis Christi. I did not have the pleasure of knowing him personally, but I certainly did know him by reputation. Professor Christi was born and raised in Nova Scotia. He started his academic career at Queen's University in 1964. In his time there, he completed the liability of strikers in the law of torts. In 1971, I'm happy to say, he returned to Nova Scotia, and he took up a post here at Dalhousie Law School, where he taught full-time until 2003 and then part-time until 2007. He served as dean of this law school from 1985 to 1991. Professor Christi's teaching interests were very wide. Labor and employment law, poverty law, municipal law, administrative law, contracts, commercial law, and professional ethics. Innis Christi had a leading role in law reform. He was engaged in the Woods Task Force on Labor Relations in Canada in 1967. He drafted the Nova Scotia Trade Union Act in 1973 with former dean Reed and the Nova Scotia Labor Standards Code in 1972. He also changed the way employment law is taught in law schools, in part through the influential text employment law in Canada. Professor Christi served in the 1970s as a member of the Canadian Anti-Inflation Appeal Tribunal. He was counseled to the Nova Scotia Labor Standards Tribunal, and he was also chair of the Nova Scotia Labor Relations Board. In addition, he was deputy minister in the Nova Scotia Department of Labor and served as a member and chair of the Nova Scotia Workers Compensation Board. He also served as a part-time member of the Federal Public Service Staff Relations Board and of the Canadian Human Rights Commission Tribunal. He was busy. Professor Christi's career was of the sort that we perhaps all aspire to. He taught, he mentored, and he inspired a generation of labor law students across Canada, and his contributions to academic labor law, to public policy formation and administration, to labor arbitration and adjudication, and to legal education are broad, deep, and enduring. He is, indeed, quite a role model. The Innis Christi lecture in Labor and Employment Law honors his life and his work. Today, we're delighted that Mike Christi, Innis's son, and Mike's wife, Sally, could join us. Please, that you're here. I'd like to thank Professor Bruce Archibald for making this lecture happen and for the assistance provided to Professor Archibald by Elizabeth Sanford, Lindsey Loomer, and Jane Doucette. They've done a variety of things, which I won't list here, but without them this wouldn't have happened. Please join us after the lecture for a reception in the faculty lounge on the third floor. I'm going to now hand over to Professor Archibald, and he will introduce our guest. So welcome to this eighth Innis Christi lecture. We have the lecture on a Thursday afternoon, and then in alternating years, we either have a symposium where we try and bring people from the labor relations community together for a day to discuss an issue. And the alternating year, there is an intensive short course, which is taught. And this year, we have an intensive short course. So Professor Rittick will be with us until Monday morning, as it turns out. So we'll hope to have an opportunity for some fun in the interim. But at any rate, Professor Kerry Rittick is Associate Dean and Professor of Law, Women, and Gender Studies and Public Policy and Governance. All of these things together, or separately, I'm not sure which, at the University of Toronto. She has an LLB from the University of Alberta from 1982. She has an SJD from Harvard. And I can never remember JSD, SJD, and JD, and whatever those things all mean now. But this is the real thing from Harvard in 1998. She clerked with Justice Leroy Jubay at the Supreme Court of Canada. And before all this law stuff started, it's my understanding that she actually contemplated a career in music. She is a flautist. I don't know how to pronounce that, but a flute player, I think, as a, I'm not a banjoist myself, but at any rate. So Kerry is a person of many talents. And she's written a lot of stuff, I've got to say. And a few key things, a publication which I've not read, but obviously should, recharacterizing, restructuring, law distribution, and gender in market reform. That was in 2002. There's something entitled Labor Law Work and Family Critical and Comparative Perspectives that she co-edited. She is one of the current co-editors of the National Casebook on Labor and Employment Law that we all use in teaching across this country, and of which Innis, of course, was a founding member. And so that's important. She's also one of the editors of the leading American textbook on international labor law, which is very significant. There are a whole lot of more recent publications in a variety of books. And she has been a visiting professor, the Mackenzie King, visiting professor of Canadian studies at Harvard, visiting professor at the Watson Institute for International Studies at Brown University, professor and academic director of the Center for Transnational Legal Studies in London, fellow at the European University Institute. Is that the one in Florence? Yeah, that's a good gig. I've always been jealous of people who do that. And here, she is the eighth visiting Innis Christie professor in Labor and Employment Law. So please welcome my dear colleague and friend, Carrie Rittig. Thank you very much, Bruce, for that very kind introduction. And thank you, Dean, for your wonderful hospitality. And Elizabeth, if you're still here. Elizabeth Sanford, who has been key to all the arrangements. It's a huge privilege to be here and, frankly, a genuine pleasure as well to be in health acts, to be at the Schulich School of Law right now. And in particular, to talk about a subject international labor law and where it's going that preoccupies so many labor scholars around the world. And of course, in which so many advocates and workers and firms are themselves engaged. I'm sure that I'm biased, but I also think it's a subject that is essential to questions of economic and social justice around the world. Innis Christie, for whom this lecture is named and in whose honor it continues, is, as you've already heard, a legendary figure in Canadian labor law. Although I have the misfortune of never having known him myself, it is impossible for anybody who works in the field of labor and employment law in Canada not to encounter his incredibly impressive work and not to be struck by his profound influence on the direction of law in this country. I didn't realize how many other things he had also done until I just heard the list recounted as you did. But it does occur to me that perhaps he might enjoy the fact that a lecture on international labor law is occurring in his name, in his honor, in part because it is incredibly multifaceted and interesting as it is evident he was himself. So let's start. The subject of international labor law immediately conjures up images, images that will be familiar to all of you, exploited of working conditions in the global south, such as factory fires, child labor, violations of workers' rights, violence against union organizers, for example, pregnancy testing of women factory workers. And as we're in the midst of renegotiations around NAFTA, it probably also conjures up other images somewhat closer to home, namely the specter of workers losing their jobs due to unfair competition from workers elsewhere who labor under sweatshop conditions. So confronted with these classic images that are all around us, the task of international labor law is typically figured as solving what I'll describe as the conjoined problems of agreement and enforcement. Put as simply as we can put it, establishing baseline rights norms and standards that work in ensuring that all states both respect and enforce them and firms and employers adhere to them. OK, so here's the classic image. I want to suggest that the task of international labor law is now both more complex and more challenging than that task and that the familiar images capture only part of what's going on in the field. The many challenges to the traditional mission and understanding of workers' rights, the new modes of establishing norms and advancing them at work, and the varied actors and institutions who are all involved in questions of labor market regulation and workplace standards at the global level. International labor law now is an incredibly multifaceted project, and workers' rights and labor standards have become a focal point and a site of struggle, it must be said, in many, many different locales and institutions. And what I'd like to do primarily today is simply to describe that landscape as I see it from the particular vantage points from which I work with the hope of casting some light on its key features and also placing the dilemmas that advocates and policymakers now face in somewhat sharper relief. So I'm going to start by stepping back and just describing briefly the history of international labor law. Many of you may already know, but the International Labor Organization, that organization that's so central to the field, is the oldest international institution in the world. It was founded at the Peace of Versailles at the end of World War I, and its function was understood to be simply to establish basic norms and standards around work across borders. Its creation reflected some very, very important consensus views in the international order at that time. And one, one which I think we do well to remember, is that the absence of social justice constitutes a threat to international peace and security. Secondly, it was common ground. It was a shared understanding among absolutely everybody who mattered in the construction of the new international order after World War I that justice at work was the central social justice question. So think of those as the conditions which gave birth to international labor law. It was, of course, supported by the fact that states were already starting to regulate labor standards at home as part of managing the social demands of a rapidly industrializing and urbanizing population. OK, skip forward to the refoundation of the ILO after the Second World War in the Declaration of Philadelphia. I think of this moment as a moment of what international relations scholar John Rugge has called the moment of the embedded liberal bargain. It may be a term that's familiar to some of you, but if it isn't, it can be described without doing too much violence to the concept in the following terms. It's simply this. It reflected a recognition that the project to liberalize trade, which was a huge part of the reconstruction of the international order in the wake of the Second World War, an agreement on the part of states not to impose harmful trade restrictions on each other, could only succeed with a quite robust domestic counterpart, namely, fiscal and monetary policies to inter alias stabilize employment levels and social policies that would provide a measure of protection to workers, workers whose lives, who was working lives in economic security, were evidently subject to disruption due to forces well beyond their own control. And these might be everything from the normal economic cycles to disruption occasioned by trade-related restructuring. OK, labor law, labor institutions, and unions were all seen as vitally important to this domestic project. And throughout the 20th century, the ILO played a really central role in strengthening state capacity to do so. The ILO drafted conventions on specific labor questions. It provided a range of forms of technical assistance to states. And rights at work, of course, it's worth remembering, formed important parts of the corpus of international human rights or internationally recognized human rights after the Second World War as well. They're codified in the two covenants, human rights covenants, but they also turn up in later conventions like the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Trial. At the same time, it was recognized that the project of international labor law, advancing labor standards and protecting workers' rights, would always require significant amounts of latitude on the part of states, what's sometimes referred to as a margin of appreciation. And this is due simply to the fact that different nations have very distinct traditions of industrial relations and labor law. And nations are also, of course, at different rates and different stages of economic development. OK, in short, international labor law was a matter of international agreement among states, but domestic implementation at varied levels and in a variety of different forms. OK, that's the story. It's a reasonably defensible shorthand of what the field looked like for a fair period of time. But after the end of the Cold War, this story starts to shift. And we have now moved a fair distance from this picture at both the normative, the descriptive, and the analytic levels. And we are moving farther away as we sit here today. OK, so what do we look like? Or what does the field look like now? Let me start by making two somewhat contradictory observations about the international character of labor law. The first is that international, or excuse me, that labor law has always been transnational. There's a very, very deep insight at the heart of international labor law, one that's as valid now as it was when the ILO was founded. And that is simply that labor standards, indeed working conditions themselves, very often have cross-border effects. As the preamble of the ILO Constitution states, the failure of any nation to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries. I think of it this way. We're all in this together. It's not really a matter of choice. We just are. The second observation rose in the other direction, though. And it's this. When the ILO was created for quite a long time afterwards, international labor law really wasn't very international at all. Viewed from the present vantage point, it almost looks like a regional project. It was born when the majority of states in the international order didn't get exist as independent states. Many were still colonies. And one result is that there is a division between work and workers in the North and the South that lies right at the heart of international labor law. This political history and this particular context turned out to be highly consequential for the content of international labor law and for the institutional activities in which the ILO itself engaged. The ILO itself was organized around the representative constituencies of labor and employment in the North, namely unions, associations of unions, employer associations, and the state. At the same time, the problems of work in the South were cabined. They were imagined largely as problems of development, part of the task of modernizing society and the economy, for example, increasing levels of productivity and growth. At the same time, employment became both the normal form of work and the normative form of work, the form of work which we imagined that developing countries themselves would see more of. And other forms of work were exceptionalized within international labor law or simply ignored altogether. So I think you'll guess where I'm going. One of the fundamental tasks of the field of international labor law now is to become truly international and universal that is responsive to the forms and conditions of work across all countries. There's a big challenge right there. Now, to describe both how we might get there and also what's underway, I want to contrast the traditional image of labor law that I've just been describing with another one. And I'm going to suggest that what the field actually looks like and what it's likely to look for as far as I can tell in the near future at least is an enterprise that I think of and might describe as the transnational governance of work. Each of these three terms, transnational governance and work, signposts a change in the focus of international labor law as well as a feature of the current landscape of workplace regulation. So let me begin with transnational. Efforts to secure better working conditions at the global level are no longer exclusively or even primarily directed at states. Nor, for the most part, do they take the form of interstate treaties, covenants, and conventions. Instead, norms and rules at work are authored by a dizzying and growing array of actors, private as well as public. Some of these actors routinely traverse borders, and some of them we might even think of as almost entirely de-territorialized. And these actors that I'm referring to range from multinational corporations and global value chains, networks of firms engaged in cross-border production, firms and networks who are often linked only by ephemeral contractual relations. And they include, of course, NGOs, industry organizations. And a range of international organizations and institutions well, well beyond the ILO. I want to put it to you that these activities that they're engaged in are best described as governance rather than simply law. So governance. Governance is an umbrella term that's used on the one hand to capture a diverse range of activities and endeavors that we might at least loosely think of as regulatory insofar as they're intended to influence conduct and practice. But on the other hand, to signal a break from classic modes of lawmaking associated with Westphalia and legal order, namely everything we study in law school, the production of norms, rules, and institutions by state actors that possess the authority, legitimacy, and effectively capacity to regulate social, economic, and political processes within their territorial borders. This is sort of the familiar stuff that we work with in law schools that we teach that we think about a lot of the time. Governance activities now and in the field of labor law in particular at the transnational level go well beyond efforts to establish and enforce workplace rules and standards through standard political and adjudicative channels. This is sometimes what we call command and control regulation. They include a whole range of decentralized activities, open, iterative, reflexive modes of standard setting, such as firm and industry, codes of conduct, best practices at work generated at every level imaginable from corporate human resource managers to international financial institutions. They include rule of law and empowerment initiatives, often directed at women workers or informal workers. And I think they even extend to things like metrics and indicators that are designed to induce states to reform their regulatory practices. I'm going to describe one such project to you a little bit later. All these mechanisms operate through soft processes of persuasion, incentive, benchmarking, and knowledge dissemination. And they have a tenuous and uncertain relation to formal law and ordinary modes of workplace regulation. And here, of course, is one of the foundational challenges to labor law at the international level and also, in many cases, at the domestic level as well. Think of governance as just a convenient way to signal multiple modes and layers of forms of rule well beyond law, as we know it, as law students, as lawyers, as advocates that now operate across global markets. OK, and finally work. The object of interest is no longer simply the employment relationship. Labor, as we know it in the field that we work in. It's much larger, a much larger category. The ILO has put the task this way. It says that what we must be trying to do right now is achieve decent work for all. And if that's the case, then in the future, international labor law has to speak to a much broader category of workers who are engaged in much more diverse productive activities than it has in the past. Who are these workers? I mean, some of them will be familiar to us here in Canada. The many workers who have no fixed employment relationship, a category that's growing in the industrialized world and that has always been entirely normal in the developing world. Those who work outside of formal employment relations, the many workers who work for themselves, but who, in general, don't employ anyone else. Workers in informal markets. And in some countries, some very important countries like India, for example, informal workers constitute north of 90% of the labor force as a whole. And finally, those who work outside of the market altogether in domestic and care work or in subsistence labor, such as farming and fishing. So let me just pause or take a small bracket in the discussion here to just note that it's both well-recognized and then curiously forgotten that an immense amount of productive, excuse me, economically as well as socially valuable work is performed outside of the market. For reasons of convention and because of distinctions between the public and the private sphere, this work hasn't historically been imagined or recognized as falling within the domain of labor law. Sometimes its shadow is visible, for example, when we try and deal with the constraints of non-market work on market work, typically for women. But as the ILO now recognizes, the exclusion of work in the care economy within labor law is increasingly untenable for a variety of reasons. Market work depends on non-market work in a variety of ways. Some but not all workers do substantial amounts of both market work and non-market work. As a result, there are critically important questions of gender and racial and social justice that sit right at the intersection of these two economies. And I'm of the view that the need to address the predicaments of informal workers is just as pressing. They're simply too central to the world of work to leave them aside. And I suspect that it won't be long before everybody is persuaded of this because we have no small number of informal workers in Canada as well, and this is certainly true in Europe. Okay, so let me flag three other challenges, which I think everyone will recognize in this room, but which complicate the task of advancing workers' rights in the global economy. The first, of course, is globalization. The world of work international as well as domestic has been roiled by a series of events that we usually just refer to by the term globalization. I'm not gonna give a discourse on globalization, but I will note that it's common ground that one feature of the global integration of markets is much greater transporter mobility of capital than mobility for workers, even though there are lots of migrant workers too. This has had all kinds of interesting knock-on effects for workers and for labor law, but among the most obvious consequences are that there is a greatly increased competition among workers for jobs. Unions have suffered declining power, and although there is no simple race to the bottom when it comes to labor standards, in general, there is very little appetite on the part of states to raise labor standards in the face of the obvious deficits in decent work and the problems around precarious work in the new economy, and little appetite to work with unions as well. Okay, so the other thing that we have to at least have on the table so that we're all bearing it in mind throughout this conversation, I think, is the decline of the standard employment relationship. The work of the ILO, excuse me, the ILO has always included addressing the predicaments of those engaged in distinctly transnational forms of work. Think of seafarers and migrant workers, for example. The ILO has also addressed lots of problems encountered by historically disadvantaged groups of workers, women, domestic workers, for example. But due to the history that I started to recount at the beginning, international labor standards are in general modeled on the normative worker that prevailed during the 20th century in the North Atlantic world. This is the standard employment relationship that everyone in the field speaks about. It's in decline due to technological innovations and transformations in the organization and delivery of production and services, the combined effects of the decline of the vertically integrated firm and the rise of networks. And as a result, there's a growing misfit between the real world of work and the classic norms and forms of labor law. And this is true internationally as well as domestically. It shouldn't be surprising because the two are so closely connected. There are many work situations and many, many workers that fall outside the ambit and protection of labor standards and workers' rights. Every labor lawyer will have encountered some version of this problem, this gap or misfit. Policy makers around the world are all trying to grapple with this predicament. But the misfit creates a couple of distinct problems for the ILO. And one is because of its unique tripartite structure. It's organized around, as I mentioned, workers' associations, employer associations, and governments, and given its global remit and the fact that these associations, in fact, don't speak to or speak for many of these groups, one question is how functional the ILO model itself remains, how well it will actually be able to perform its functions. Okay. The second thing I'll mention, a word about global governance norms. The term governance is a useful term, I think, for us to bear in mind, not only because of the changes in actors and processes that it signals, but also because it signals a changed ethos in respect of regulation. Market fundamentalism, as I just sometimes called. As everyone in the field of labor law knows, the field's most basic ambitions to secure rights for workers, to put a floor into working conditions, and to enable workers to collectively mobilize and use their bargaining power to secure better terms and conditions of work, sits very uncomfortably beside competing narratives about the proper aims and purposes of a whole raft of regulations, including labor law, labor market institutions, and social policy. I'll describe it a little bit more detail later. The narratives of labor law, the projects of labor law, sometimes clash with other narratives, other projects coming out of organizations such as the OECD, the World Bank, the International Monetary Fund, who emphasize efficiency, productivity, competition, and entrepreneurship as anchor values in economic regulation. And even though they have now been pressed to accept the importance of fundamental rights for workers, they still often imagine higher labor standards and effective trade unions as part of the problem rather than part of the solution. So think of the ILO as in open competition with other international organizations over control of the international labor law agenda and the direction of regulatory change. It's partly because I work also in the field of law and development that I think I'm so attentive to and so conscious of what's going on. I often think that there are two competing international labor law agendas. One, the classic international labor law agenda that we can all talk about here, but the other competing agenda to promote greater labor market flexibility. Okay, the ILO has responded with a range of new initiatives. I'm gonna not talk about what's going on at the ILO in detail except to flag one that has been a very high profile initiative and quite consequential across the international order as a whole. And that is the promulgation of the Declaration on Fundamental Principles and Rights at Work in 1998. The declaration makes it an obligation of membership on the part of states who belong to the ILO to promote respect and realize for core labor rights, freedom of association and the effect of right to bargain collectively, along with freedom from forced labor, freedom from child labor and freedom from discrimination. This declaration, as we'll see in a minute, gets picked up and is being used very, very broadly. The ILO is also involved in a range of other initiatives. It has a decent work agenda. It's got a number of initiatives to carry forward the social justice mission into the 21st century, including initiatives to promote work in a green economy. But I'm gonna put all of that aside and actually turn my focus outward a little bit. And I wanna do so to explore two big challenges that I think those of us who work in the field have to come to grips with. And the first is the challenge of normative diversity in institutional conflict and competition over workers' rights and labor market regulation. And the second related challenge is the challenge of managing pluralism and multi-level governance at work. The fact that there are many, many different regimes operating in the same space and which regimes have preeminence or salience is one of the great unanswered questions of international labor law right now. But let me back up a little bit and talk briefly about trade and labor linkage because there's a lot going on there right now, including in Canada, as it turns out this week. So since the intensification of cross-border trade began in the 1970s and since the creation of the WTO the World Trade Organization, excuse me, in the mid-90s, workers advocates, as well as some industrialized states preeminent among them the United States, have sought to link improvements in international labor standards to trade liberalization. Although adjudication has never been the primary means of promoting international labor standards, the enduring hope of people who have advocated trade labor linkage has been to leverage the muscle provided by the enforcement mechanisms in trade agreements to strengthen international labor norms that are widely regarded as weak or toothless, right? So the idea here is linkage is gonna provide a means to hold violators to account and to ensure that they face not just reputational damage but damage to the bottom line as well. Okay, so that's the idea. Trade labor linkage, however, has always been contentious in the Global South due to concerns that labor standards would be used as a latent means of protectionism. And because of the deep reliance on low-wage labor as a development strategy in many countries outside the industrialized world. And whatever the hopes of the advocates, the WTO has not proved to be a very congenial arena for advancing international labor standards. The very first ministerial meeting that was convened dashed these hopes pretty decisively. A declaration was issued from that meeting that established that the ILO was the competent international body to deal with questions of labor standards. The declaration also rejected the use of labor standards for protectionist purposes and agreed that the comparative advantage of countries must in no way be put into question. And I should mention that that latter commitment, not to use labor standards and workers' rights to impugn the comparative advantage that developing countries also found its way into the ILO declaration, right? So the ILO too is committed to the idea that whatever we think about global labor standards, you can't use them as a club to prevent the normal processes from comparative advantage from operating within labor markets as they do in other markets. Okay, so we have a rejection of trade labor linkage at the multilateral level. No linkage in the WTO notwithstanding actually fabulous arguments by some great trade scholars about how you might successfully make these arguments in the WTO dispute mechanism. Notstanding that that's true, in fact, labor standards and workers' rights are now completely standard elements of virtually every bi-national trade and investment agreement and all the mega-regional agreements as well. The Canada EU trade agreement, the proposed Trans-Pacific Partnership, the various other agreements. Moreover, if we look at these agreements, we'll find that what's in those agreements with respect to labor standards is increasingly convergent, both in form and content. So, for example, we would expect to find and we would in fact find the four core labor standards from the ILO Declaration and we would also find commitments of non-derogation. That is, commitments on the part of the signatories not to either fail to enforce or to reduce their labor standards in hopes of gaining some kind of competitive advantage over their trading partners. Okay, notwithstanding the fact that labor standards are proliferating and as you may have noticed, Minister Friedland has made a point of saying that in the current renegotiations of NAFTA, she will defend workers' interests and strengthen the protection of labor standards in trade agreements. So far, neither of these agreements nor litigation under these agreements have proved to be promising routes to advance labor standards and I think that whatever happens with these agreements, that's very likely to happen to remain the case. Nonetheless, I wanna talk about a couple of cases because cases are always great to talk about. They're interesting and because they illustrate in my view incredibly well the nature of the current conflicts on the international plane when it comes to international rights. Okay, about 10 years ago, the International Law Commission issued a very famous report on the fragmentation of international law. This report was a report that followed a study provoked by the following dilemma which is simply this. Where more than one legal regime or tribunal operates in the same jurisdictional or functional space, we confront the possibility of competing and colliding norms, as well as of course conflicting decisions that come out of these tribunals. This is a problem in a flat legal order like the international legal order. There's no court like the Supreme Court of Canada to sort out these issues, to decide which tribunal has preeminence or jurisdiction in a particular issue or to rule in any final way on these competing decisions. But I wanna just flag one thing that I think is really interesting and really important for the purposes of understanding what's going on in international labor law now. Here's what the commission observed in its report. Rightly so in my view. Each legal regime can be expected to resolve legal disputes according to its own systemic priorities and perspectives. As the IOC put it, each regime has its structural bias as well as its own ways of proceeding. The disposition of a claim about workers' rights then is destined to vary according to the regime in which the dispute is heard. And especially where workers' rights engage, competing rights and values, it matters immensely which one is preeminent. For example, do workers' rights have to be justified where they touch on the conduct of trade and commerce? Or by contrast, are rights to trade themselves subject to modification in the face of workers' rights and human rights claims? Shortly after the IOC issued its report, it turns out that the European Court of Justice issued two decisions in which workers' fundamental rights confronted the right to establishment, which is what the right to trade and do business is called in the European Union. And it's fair to say that the decisions were received as cataclysmic within the labor law community. We can't stop talking about them. And an enormous amount has been written about these decisions. So let me just briefly describe these cases. Is anybody in the room familiar with the cases of viking and laval? You don't have to be an expert or even care a lot about European law to find these cases interesting. So if you want some good reading, these are good cases to read. So the first case, viking, concerned a Finnish ferry company that was attempting to reduce the cost of employing its crew by reflagging in Estonia. That was gonna be the pretext to enter into a new collective agreement. However, they were frustrated in their attempts to do so when the International Transport Workers Federation issued instructions to all of its affiliated unions not to enter into agreements with a ferry line, and the Finnish Siemens Union announced that it was gonna boycott and strike all the operations on the Helsinki to Tallinn line, right? So it's gonna shut the operation down, which it did, very effectively. Once Estonia joined the EU, however, it went to London and brought a series of claims in English courts claiming that its right to establishment under the Treaty of the EU had been violated by these actions. And the case went by the Court of Appeal ultimately on reference to the European Court of Justice, which determined that indeed, vikings' rights to establishment had been violated, notwithstanding that the case engaged workers' fundamental right to strike, which is, of course, also recognized under community law. The Court based its decision on the following determination. It found that the exercise of the right to strike had aimed to restrict the ferry operator's rights and could not be justified, at least insofar, as less restrictive means were available. Now let's put aside for a moment the puzzle of what it might mean to engage in less disruptive means if you're engaged in a strike. After all, a point of a strike is disruption to prevent the struck business from carrying on, business as usual, but we'll put that aside. What's more interesting for me, or for our purposes here, is the starting point adopted by the Court. In its view, it was the restriction on freedom of establishment that had to be justified, not reverse. Now, the requirement that fundamental rights be justified might seem to labor lawyers, to public lawyers, to human rights lawyers upside down, or at the very least at odds with the purpose of guaranteeing workers of fundamental rights. And as a number of labor scholars have suggested, it's impossible to square this decision by the European Court of Justice with respect for workers' rights under international labor law. There's simply a direct conflict here. Whatever the answer to that, I think Viking illustrates incredibly well the very tenuous state of workers' fundamental rights whenever competing rights are involved, as well as the overwhelming significance of the baseline from which infringements of workers' rights are measured. I should be mindful of the time here. The case of Laval, which was issued shortly after, produced a similarly dismal result, at least from the standpoint of workers' rights. It concerned a company that refused to enter into negotiations with the unions that represented workers in the constructions sector in Sweden. And what matters here is that collective negotiations rather than simply regulation are precisely how rates of pay and other standards are established in Sweden. Here, the European Court of Justice too came down on the side of the firm on the basis that, well, workers' fundamental rights, such as the right to bargain collectively, might indeed possibly trench on workers on the rights of establishment. In this case, the obligation to bargain, created an obligation that was insufficiently precise and accessible to enable firms to determine their obligations without excessive difficulty, right? Okay, so too much tribal workers' rights have to give way here. Okay, the European Court of Human Rights has come to opposing conclusions about the status of workers' rights in a very interesting line of cases. What I just wanna observe here is that whatever critics and labor lawyers think about these various decisions, we're in a world in which disparate and conflicting decisions are becoming the norm and the response to a fundamental rights claims is very often or is expected to vary, I think, depending on the tribunal in which it is brought. Okay, I wanna talk, I wanna move now to another arena perhaps slightly closer to home and talk about the first ever case that was brought about labor standards under a trade agreement. In a decision that was just issued this past June, the U.S. Guatemala case under the U.S. Central America Free Trade Agreement. This case is caused just as much consternation among labor lawyers for both related and different reasons. It concerned a complaint brought by the U.S. at the behest of Guatemalan trade unions about the repeated failure of Guatemala to enforce its labor laws against firms that were engaged in cross-border trades. And the illegal practices here were simply firing of union organizers, a classic activity, one that's recognizable all over the world. If you wanna shut down a union, you fire the organizers here to the workers lost decisively. I would urge anybody who's remotely interested in this to have a look at this case because I think it's a textbook example of the procedural and the evidentiary difficulties of bringing a labor complaint before a trade tribunal. And although the chair of the panel was himself a very distinguished labor lawyer, I think the decision illustrates the immense difference it makes to have such a complaint heard by a specialized tribunal, a labor court, rather than a regular trade tribunal. You'll see, of course, great, I think it's a great illustration of the significant limitations in the provisions in these trade agreements themselves, provisions that we should probably bear in mind as we're negotiating future ones. Without going into an immense amount of detail, here's a few things that happen that seem surprising to labor lawyers. The United States redacted the names of the complainants from the evidence who had testified about the rights violations for reasons that for most of us as labor lawyers seem to be self-evident, namely that reprisals are to be expected in these kinds of contexts. And in this case reprisals could be expected to take the form of violence and perhaps even death. Nonetheless, the panel concluded that the missing names reduced the value of the evidence and they discounted it. The panel also observed that the United States hadn't established that the dismissals in these cases had any particular spillover or chilling effects, something that labor lawyers and most labor tribunals would just take as given. And the panel also repeatedly discounted all kinds of external reports, including those provided by the ILO about labor practices in Guatemala. And such evidence is of course routinely cited by high courts such as the Supreme Court of Canada. And it's widely thought to be germane to patterns, to understanding patterns of behavior in the workplace and systemic practices in labor management relations. Okay, so I think that this case is an unusually stark illustration of how matters of process, adjudicative style and evidentiary practice might affect the disposition of a labor complaint in these contexts or perhaps even render the bar to success impossibly high. And at the end of the day, the key hurdle was simply establishing that all of these things had any relation to the competitive position of firms. The panel thought that there wasn't sufficient evidence there and this is of course an element of the offense. It was up to the US to establish that the failure on the part of the US to enforce its labor laws in these particular contexts had any effect on the competitive position of firms. Okay, I'm inclined, so some people might be inclined on the basis of these cases to think that the future of international law, international labor law is pretty dire. That may well be true, I think the jury's still out, but I would draw at least one other conclusion which is that the future of international labor law like its past is unlikely to be centered around adjudication and instead all the action is going to be going on elsewhere. In fact, that is where a great deal of the activity already is. And here, I think that the fundamental insight of the International Law Commission about fragmentation is something that we can usefully take forward. I think it's valid not only in respect of individual tribunals, I think it's generally true. And that is simply that in every arena where workers' rights are at issue, there are gonna be distinct priorities and preoccupations which will affect the approach to workers' rights and labor standards. And I think focusing on the larger systemic priorities of whatever organization or agency or actor is involved in questions of workers' rights is probably one of the most helpful things that anyone can do at this point. Cause I think it gives you a huge clue in many cases about why things are going in one direction versus another. Okay, so I think I don't wanna talk enormously longer here but I do wanna talk about what's going on in these arenas outside of adjudication and flag two things, namely that by the mid-90s when the WTO rejected trade labor linkage and said that the ILO was the proper international institution to deal with questions of workers' rights, the horse had already left the barn, I'm sorry, but there were already all kinds of other international organizations that were deeply involved in questions of labor market governance. And myriad other private non-state arrangements were emerging on the landscape as well. And this outward dispersion from the ILO to other international organizations and private or hybrid public actors has made immense changes to the agenda to advance workers' rights across the globe. It's also changed the form and content by which workers' rights and interests are advanced. So to be slightly more specific, what you see in many quarters is that the question of workers' rights and labor standards is now simply a subordinate branch of economic governance. And on the other hand, the fate of workers' rights is increasingly tied to what's going on in the private sector, private sector decisions about what to do and what not to do when it comes to workplace rights. Okay, I've written an immense amount about this particular thing in part because I work in the field of law and development. But I think everybody who thinks about international labor law needs to know that at least for the last two or three decades, the international financial and economic organizations began to advance and have continued to advance a view that is now very familiar. And this is simply the argument that labor market institutions like job security provisions or minimum conditions of work contribute to suboptimal economic performance, as well as the protection of insiders to excluded outsiders. And they do so by impeding the private sector's ability to create jobs and its central role as the engine of wealth and welfare gains. Okay, so consistent with this view, I trust everybody has heard some version of this argument floating around or read it in an editorial. These organizations began to attach reforms to labor standards and labor market institutions to their loan agreements, literally condition the receipt of funds for poverty alleviation or debt relief on de-regulatory reforms to labor market institutions. The OECD started to do a whole bunch of other things as well. These were highly contentious claims within economic theory at the time that they were advanced. They've become more so over time and the evidence has proved controversial as well. But it hasn't stopped the project. And I wanna mention just one project which is both very interesting as an example of contemporary efforts to try and influence the direction of change with respect to labor law, but also highly influential. And this is the World Bank's doing business project. The doing business project is a really interesting thing. It's a series of metrics and indicators that purport to measure the quality of a state's economic regulation. And one of the key metrics and indicators was the employing workers indicator. Basically, states were ranked higher in the employer workers indicator the lower their labor market protections, right? And you might think, what's the purpose of these indicators and metrics? Well, it was to induce states to reform their labor laws on the theory that they could and would thereby attract more investment and generate more jobs and growth. Okay, as you might imagine, this indicator was very contentious. The international trade unions seized upon it, pointing out that it was an open invitation to states to violate all their obligations at international labor law. The indicator was subsequently withdrawn, but the basic commitment and the basic message labor market institutions are a problem has remained in place. And I think that the power of this project, you can see continuing, for example, in the flagship world development report of 2013 devoted to the question of jobs issued by the World Bank, thought that these were the central questions that we should think about. How can the reallocation of workers be accelerated from areas and activities with low productivity to those with greater potential? Can entrepreneurship be fostered or is it born? So think about the traditional agenda of international labor law. The objective here is not, in the first instance, at least to secure rights and voice at work, rather it's to mobilize competitive forces in labor markets and induce workers to become more effective and productive entrepreneur of their human assets, right? So radically different idea about what should be going on in the labor markets. Okay, now, I think it's important to pay attention to this. And the way I put it is this. Recall for a moment that much of the work of the ILO and international law involves the establishment of global norms and rights at work and the provision of expert technical advice on how to advance workers' rights, how to produce good workplaces and good labor markets. I think if you remember that, it's not difficult to imagine the deep challenge to the international labor law agenda, how much the advancement of workers' rights might be altered by other international institutions doing exactly the same thing, but singing in a different key, as it were, and often with much better access to decision makers and many more resources at their disposal. So you've got, on the one hand, the IMF and the World Bank advising governments to design economic regulation in all sectors to stimulate competition, and then there's the ILO, of course, trying to address the decent work deficit and advance the project of fundamental rights. Maybe I'll just try and wrap up here by pointing out that the hurdle at this point is not establishing the normative case for fundamental labor rights. Across the spectrum, the ILO has very largely succeeded. Rather, I think it's the more difficult challenge of advancing workers' rights and interests and the collective project of social justice in the face of competing policy concerns and countervailing rights claims. And more specifically, I think it means defending institutions, and they, of course, include labor law, but they go well beyond it that have much bigger aspirations than simply allocative efficiency. Regulations and institutions that have aspirations to address differences in bargaining power in the labor contract and other economic contexts as well, but also to more generally advance distributive justice. Now, I want to suggest that these are non-objectives that are inherently opposed, but there is no good resolution to their coexistence at the moment, and I think much of what international labor law will be doing going forward is really grappling with these contending narratives and these contending projects. Okay, now, the last thing I'm gonna say is simply to flag the incredibly interesting stuff that's going on that involves private actors and on their own, as well as private actors and international institutions. There's an enormous raft of soft projects out there, projects like codes of conduct, factory information, disclosure agreements, monitor agreements, they cover a wide range of industries, firms, and sectors. For the most part, they have been provoked by workers, NGOs, civil society actors who have successfully marshaled the language of human rights and workers' rights to cast light on exploitative working conditions. They are a response on the part, particularly of multinational firms, to manage their brand exposure, usually in the least costly way, and they're widely imagined as substitutes for harder forms of labor law, especially in large parts of the developing world where there aren't a lot of realistic possibilities to enforce labor law, as we do in the industrialized world, in part due to administrative capacity or constraints on resources, or it must be said, competing incentives to provide conducive environments to attract business and investment. You might think that the international labor organization would resist these that states too might wonder about these activities, but what we're seeing more and more are private public initiatives that enlist the private sector but also use the imprimatur of the UN or the involvement of states. I'll just mention the ILO's Better Work program operated in conjunction with the International Finance Corporations. It's a very interesting experiment that marries factory level audits that are paid for by international garment manufacturers such as GAP and H&M to ILO standard setting, and it also engages new governance objectives of continuous rationing of labor standards. So there are all kinds of objectives here. Some good developments, but also some disturbing ones are ones that I released keeping an eye on. One is the disappearance of some of the traditional concerns within international labor law. Questions of bargaining power are typically missing from the discussion and problems of distributive justice, huge inequities, for example, in who captures the gains of this transnational economic activity are very, very hard to bring to the surface. Apple is a great example. I mean, many of us in this room have Apple devices. The profits that Apple make are unfathomably great. They're almost unparalleled in the history of economic activity, yet at the same time the workers who manufacture the products that we use are still routinely throwing themselves out of the factories in which these products are manufactured because the working conditions are still incredibly substandard. Okay, the other thing that troubles me and that I think we must respond to is what I would describe as a deep asymmetry in the legal position of firms and enterprises on the one hand and workers on the other. Firms and employer, for the most part, enjoy greatly strengthened contractual and commercial entitlements across borders. This is a result of trade and investment agreements, regulatory coordination on the part of states, as well as simply the shared belief among transnational elites that it's very important to provide these kinds of entitlements. And workers, for their part, are encouraged to rely on the fundamental rights of the ILO declaration and explore the possibility of voluntary and cooperative solutions to workplace problems, even as their own regulatory demands are unmet. And in this scenario, the place of unions is a big unanswered question. Very often unions are sidelined entirely. So here we are. We've got a highly fragmented field rather than unified one at first. It's one in which there are immense open questions with all the activity that I've just described, the connection between all these forms of transnational governance of work to actual changes in the status of labor standards on the ground is very, very uncertain. It's always hard to look around corners and to determine what might be coming. But my best guess at this point is that as in the past, international labor law is gonna continue to be roiled by the big economic, social, and cultural developments of its time. I don't think it could be otherwise. And whatever the status of workers' rights claims, in particular locales, and as I've mentioned, sometimes they're pretty dismal. I think at the end of the day, there is no doubt that any aspirations to social justice will be intimately connected to questions of labor standards. Work is simply too central to all the big questions of welfare and social justice of our time. That's always been true, and it's in destined to be true in the future. Thank you for your patience. Thank you for your patience. I hope I haven't trespassed on your talk too much. So are there questions that people have? Do you want to handle the field you used of standing in front of a classroom? I have been known to do that. Yes. I'm gonna be questioning that idea because it seems like it's a limited, even if it is an advantage for a limited period of time, because of the development of local schools, rise and then they're prepared to eventually disappear and move to other places. You've seen that, but you can see that a little bit, sort of a movement of the sort of low wage or the amount of time that they're replacing and Southeast Asia. So I'll get to that question. Keeping that in mind, that I have read and started with that sign of aid developmentally and sort of changing the conception of it instead of being actually that the global market is giving a lot of people a little self, a little self, a little standard, a little wage, all that is actually, really a lot of it's giving tons of aid back. So it's sort of what we can see but maybe it's really the tips being sent back from the global market for the oppression, think about that. So putting those together, there's also been like a, I feel like, sorry, there's a lot going on. There is a lot going on. Seems like a popular at least conception of like labor issues sort of dwindling. That being not as important but aid is something that like, nowadays seems to be an issue that's well worth over there, something that should be done. Obviously there is a big difference either way. So I wonder how you could reconcile both aid, like development aid with labor standards in the global south and if a reconceptualization of the aid or the would be a good way of bettering the standards, like labor standards in the global south. Does that make sense? What a question. Let me start with your second one. There, I think it is plausible to characterize low wage, low wages and low labor standards abroad as a subsidy to the enormously good lifestyles that some people at least enjoy in the north. Robert Wright put the dilemma, I think very well a few years ago, he said that we're divided in the north, he was writing in Americans, but I think it captures something very interesting. He said we're divided in what we want in the north. We're divided in our roles as citizens, from our roles as workers. So we adore all the benefits from the very low wage production of goods that we now receive, but it comes frequently at a cost to us as workers. So we may be paying for it or some people will be paying for it. So I think it's not a crazy idea to describe it that way. Okay, now let me go back to your first question, which as I understand it, the concern of a comparative advantage is misplaced because comparative advantage at least in labor conditions and wages is a fleeting advantage. Take the condition of the predicament of China, it's now losing jobs and production to get still cheaper. Yeah, that can certainly happen. It's also what happened to Mexico. Mexico was the initial beneficiary to integrated trade in the Americas, but all the factors that my key doors were, any of them were really located over to China. Now, do I think it's automatic that the comparative advantage of low wage jurisdictions will disappear? No, I don't. It assumes, let me put another. So one feature is a feature in which all wages converge, right? The bottom ones rise, but you realize of course that that means that ours are supposed to fall too. That's the second part of it, right? So that's one possible future. I think it's actually more likely that we have an uneven process in which there will be some jurisdictions that always have some comparative advantage in lower wage, but another way to think about it would be this, not everybody can be a winner by definition. It's just not true that every single company or every single country can move up the value chain, right? And be a high-skill, high-wage producer, right? At least not in the economy as we currently recognize it. So that's the part of the narrative that I think we need to keep an eye on. And that's gonna take me back to the question of work and labor standards. I think that not only in the context of development, but in our own countries at home, we just have to recognize that there are always gonna be people and lots of them doing fairly basic work. And the task is to make fairly basic work good work, at least decent work or better work. And we don't know how to do this. I just think it's magical thinking to imagine that there's never gonna be any low-skill work and low-skill labor. I don't recognize any such society. So I think actually maybe this is a partial answer to your final question about the relationship between aid and labor standards and should we or couldn't we maybe think more about aid than labor standards as a way of improving work or improving the predicaments of workers in developing countries? No, I don't think so. I think it would be actually conceptualizing instead of aid of countries in the global world giving money to countries in the global south, but actually aid being centralized as improving labor standards in the global south in real and meaningful ways is being much like a better way of paying than through just giving money back to them, giving money to them. Yeah, I mean, there's certainly not to an important thing, which is it matters immensely who gets and who doesn't get the funds, right? The problem is not generating the wealth. The problem is ensuring that there's some moderately acceptable distribution of the gains of productive activity in which everybody's engaged. One of the key features of globalization and if we didn't know it 30 years ago, I think it's indiscutable right now is that market integration is a phenomenal mechanism for concentrating gains at the very, very top. It's the statistics even in the United States are just mind blowing. I mean, the recovery after the financial crisis, it's really, it's really astounding. The recovery is only people at the very top. Wages and living standards are flat and in many cases below what they were a generation ago in the United States. And that matters a lot and it matters to you. It's all about you. It's all about everybody starting to enter the labor market now. You're at an immense disadvantage relative to where I was and it's grossly unfair and you should be on the streets. Thank you. I have a broad question. It may not only be legal in the same scope but perhaps goes to energy pluralism. My question arises from an article in the New York Times in the last two weeks where they proposed, looked at what's happened in the United States since the Second World War and the various paradigms and he most recently identified the paradigm of meritocracy where there's a liberal meritocracy philosophy seem to have gone now out of favor among large numbers of US citizens, many of whom are non-college educated, white labor who find themselves as advantage by what they do as over-emphasis of meritocracy. So while I appreciate that that's not strictly a legal question, I think it does come under the question of, am I just saying, since I've retired, I've already come to the conclusion that too many lawyers spend too much time just on legal issues and not enough on the bigger issues that impact on questions like cross-border labor strategy and so on. So in short, if citizens of the United States are getting to the point, large blockages, are getting to the point where they no longer accept what's gone on for the last 20 years or 15 years in the US and by the way, there's some indication from the German elections all of a sudden as a substantial number of the German population are talking about the same. Then how has pluralism failed? How has magic pluralism failed? And what is the impact on the ILO and cross-border labor strategy? Okay, another massive question. Let me just try and give a couple of short responses. So the idea that meritocracy thought out a figure among the white working class in the United States, perhaps in Germany, what's going on there? Maybe another way to articulate the sentiment which I think you're trying to capture is the realization among many people that in the US, the American dream has died, or at least to the extent, be it any easy assumption that if you just were moderately well-behaved and did what you were supposed to do, you could have a pretty good life. Your children would enjoy a life at or above the same level that you do. I mean, it's just simply a fact that's very hard to deny that that doesn't describe the world that we're in anymore. And of course, that has political and social consequences, right? I think the best answer to this is really just to look back a little bit in history. There's a reason that the ILO in the Declaration of Philadelphia reiterated the idea that social injustice is a threat to peace and security, right? It's a huge thing. In the 1930s, there was a very different reaction to the Depression in Europe than there was in the United States. The 1930s was the birth of the Fair Labor Standards Act, the Wagner Act, the original Social Security provisions. It was a response more to the left that recognized that collective action was needed to help people who were in trouble and suffering through no trouble, through no fault of their own. In Europe, the response was very different and the political response was very different on the right, in particular, in the United States. So I do think it's dangerous to simply ignore people's economic pain. I think that people who imagine that they can successfully insulate themselves are dreaming in technology. I really do. I just think it's not true. It won't happen. And to the extent that it's possible, it'll produce all kinds of pathologies of the kind that I don't think anyone's really want to live in. Sorry. Yes, yes. Of course. Somebody didn't punch all the lot during speeches. They didn't even have the audience. Right. And I'm just wondering, for example, automation is going to have massive impacts on both development and development of law. Like, for example, when legal blockers in Canada had off-chord, doctor-reviewed India during the earlier part of the decade. Since smart attack on legal tech has still been arising, actually it's going to wait for India and it will be automated. And development in countries, traditional jobs, especially jobs that might involve say driving vehicles such as, say driving a taxi or Uber now in the days of the world, are incredibly likely to be moderated in the next 10, 15 years. My question is, how can the ILO and other organizations plus civil society respond to a rise of automation? Thanks for that question. That's a really great observation and I could easily have put it in my list of things that really are changing the agenda of international legal law. Put simply, I think we have to look at a future of very low growth in jobs, right? In part for the reason that you're describing. Auto plants run on very few people and so do many other forms of work. So what does this mean? If you work in the field of labor law or if you're interested in questions of social justice. I mean, I think we'll be having a big conversation collectively about what this means and how best to manage it. But for me, it just means that we need to face up to the reality that not everybody will have a good job and some people won't have jobs at all, which means we need to think about ways to provide meaningful work. Maybe some of it will be outside the market for some of us and above all, needs to ensure that economic security and social inclusion isn't so closely tied to whether you have a good job or not. I think there are gonna be huge debates about how we best do it, but I think you're dead, right? That a future in which the number of jobs available doesn't match the number of workers who are out there looking for work is part of the future. It's a nightmare scenario for labor law because it puts massive pressure down or pressure on working conditions. And yeah, it's gonna be a really big thing we have to deliver. So, it's a great presentation. So, the people who have agreed to be in your course will have two more days in an intensive fashion to explore these issues with a sophisticated and, we've seen, lengthy set of materials, which I understand that Carrie is going to give some hints on how to manage. Yes, yes, I will. But at any rate, we have a gift to recognize your contribution to the tradition of the Innis Christi lectures on labor and employment law. And I hope you like it, but let's go upstairs and have a glass and something to eat. The faculty lounge, which is on the third floor, and that can follow people who are currently in the school revenues. Thank you. Thank you.