| The issue of linking the protection of labor rights and interests with trade and investment agreements(FTAs)has been both important and controversial for a long time.The US and the EU took advantage of the wide recognition of the 1998 ILO Declaration on Basic Principles and Rights at Work and its Follow-up(1998 Declaration)measures to incorporate core labor standards into the labor articles of FTAs and promoted the application of the mandatory dispute settlement mechanism.China completed the negotiation of the China-EU Comprehensive Investment Agreement in 2020 and announced its application to join the CPTPP in 2021,both involving the labor articles of the FTAs led by the US and the EU.In this context,this paper studies the application of labor articles in FTAs through historical,empirical,comparative,and other research methods,including discussing the applicability of the specific content and scope of labor articles from the should-be level,and analyzing the practice,legal interpretation,and problems of existing labor articles from international treaty law and international labor law.Based on the above,this paper puts forward the Coordinated Application Theory of labor articles in FTAs,and makes countermeasures and suggestions based on the application in China.Firstly,this paper reviews the background of the labor articles in FTAs,analyzes the theoretical disputes about whether the protection of labor rights should be linked to FTAs,and points out that they all have limitations of "self-centered’ and "static perspective".Secondly,based on the general principles of treaty interpretation of the 1969 Vienna Convention on the Law of Treaties and the US-Guatemala case and the EU-South Korea case concerning the dispute over labor articles in the FTAs,to discuss the labor standards,the level of protection and the settlement of disputes.This paper points out the declarative nature of the 1998 Declaration,which is the basis of labor standards,and its binding force based on the mechanism of the constitution of the ILO and treaty interpretation.The level of protection and dispute settlement also have prominent problems,such as the special exemption from the obligations of commonwealth countries and the political,unilateral,uncertain,and non-democratic nature of the application of labor articles.Thirdly,this paper holds that the main obstacles to the application of the above-mentioned labor articles in China lie in the unitary system of trade unions and the right to strike.However,the unitary trade unions with Chinese characteristics originate from the special revolutionary history and political functions of Chinese trade unions in socialist China,and their legal basis lies in the provisions of the constitution on the "people’s democratic dictatorship”,so they are reasonable.Fourthly,this paper holds that the essence of the protection of labor rights in FTAs is national competition.We should adopt the mechanism of "dynamic interest balance based on reality and unknown" from the perspective of history and development to seek consensus.The labor articles shall be applied through coordination rather than unilateral coercion based on the consensus of the contracting parties rather than strength status,that is,the coordinated application theory,and it is proposed that the coordinated application shall follow the principles of respecting sovereign equality and the community of shared future of mankind,inclusiveness and sustainable development,responsible good governance,international cooperation and relevant legal rules,It is of great significance for all countries to promote the realization of the goal of "social justice" in the way of "rule of law" while developing economic and trade relations.Finally,when the Coordinated Application Theory is applied in China,this paper holds that under the leadership of the Party,Chinese trade unions can properly separate the political functions from grass-roots trade unions and legally regulate strikes. |
