2. Stringency of child labour provisions

association (Jill Murray et al., 2021, p. 79). The panel notably pointed out that the provisions on ratification of the ILO core conventions lacked a specific target date or particular milestone and merely referred to the obligation to make “continued and sustained efforts towards ratification” (Jill Murray et al., 2021, p. 74, §276). Accordingly, both parties had under the agreement an “on-going obligation” to ratify the conventions, “affording leeway for the Parties to select specific ways to make continued and sustained efforts” (Jill Murray et al., 2021, p. 74, §278). Owing to this leeway, the panel therefore concluded that South Korea had only violated its obligations under the agreement because it had not acted on this on-going obligation to strive to ratify the four ILO conventions. However, the decision of the panel emphasised the importance for the European Union to include provisions with timebound roadmaps accompanied with targets within future trade agreements. Such provisions would indeed impose a strong obligation on the parties to ratify the instruments, in contrast to the mere reference of “continued and sustained efforts towards ratification. ”

While other issues have also been raised, they involved matters other than labour rights. For example, the European Commission requested consultations with Ukraine on the country’s export restrictions in January 2019, under the EU-Ukraine Association Agreement (European Commission, 2020b, pp. 47–48).

2. Stringency of child labour provisions

Comparison between FTA and GSP provisions The lack of enforceability of TSD chapters calls for a comparison with other similar trade instruments, so as to draw good practice from these instruments in the event that they would be more stringent than TSD chapters. In this respect, as GSP programmes allow for a unilateral approach, they provide an alternative to trade agreements with TSD chapters in the European Union.

The aim of GSP provisions is to remove or decrease import duties from products produced by countries considered as being “vulnerable” (Regulation (EU) No 978/2012, Preamble, para. 9-11, art. 9). By contrast to TSD chapters, which apply uniformly for both parties of the agreement, GSP apply unilaterally.

Created following UNCTAD recommendations in 1971, the EU GSP reduces tariffs for developing countries so as to generate an additional export revenue and thus create jobs respecting internationally agreed standards. In the words of Borchert et al. (2020, p. 12), the EU GSP is enshrined in the WTO system, whose Enabling Clause of 1979 legalises a positive, pro-development form of trade discrimination. Indeed, it enables developed countries to propose to developing countries more attractive tariffs than those of the most favoured nation (MFN). As laid down in Article 4(1) of the Regulation, developing countries are deemed as vulnerable as long as they are classified as having an income level below the “upper middle income” by the World Bank, and are not already granted preferential treatment under another agreement, such as FTAs (Regulation (EU) No 978/2012).

The EU GSP has evolved through several reforms in 1995, 2006 and 2014 (Council Regulation (EC) No 3281/94, No 980/2005, No 978/2012), with the latter providing for the

current GSP regulation for ten years. As laid down in Article 1(2) of the Regulation, preferential access to the EU market is made possible through three different programmes, i.e. the standard GSP programme, the GSP+ programme and the Everything But Arms (EBA) programme (Regulation (EU) No 978/2012).

Whilst the standard programme applies to countries with low- or lower-middle income, and only enables them to get a reduction in duties below the MFN tariff treatment on about 66% of EU tariff lines, the second programme, introduced in 2006, provides for duty-free tariffs on all products covered by the standard GSP. Both programmes had their scope cut down, such that the standard GSP programme currently counts 15 countries, whereas the GSP+ programme comprises 8 countries (Damen & Igler, 2020, pp. 2–3). The EBA programme, introduced in 2001, eventually allows for duty-free and quota-free access to the EU, with the exception of trade of arms and ammunition (Damen & Igler, 2020, p. 3). This arrangement is only available for the least-developed countries. Comparing the standard GSP, GSP+ or the EBA initiative, two observations can be made, which suggest that the provisions of the GSP are more stringent than those of the TSD chapters.

First, GSP provisions are endowed with a strong pre-ratification mechanism. All GSP programmes require the respect of fifteen core conventions on human rights and labour rights, as laid down in 19(1)(a) of the Regulation (EU) No 978/2012. These conventions comprise, inter alia: the Convention on the Rights of the Child of 1989 (United Nations General Assembly, 1989); the Convention concerning Forced or Compulsory Labour of 1930, no 29 (ILO, 1930); the Convention concerning the Abolition of Forced Labour of 1957, no 105 (ILO, 1957); the Convention concerning Minimum Age for Admission to Employment of 1973, no 138 (ILO, 1973); the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of 1999, no 182 (ILO, 1999).

In addition, countries eligible for the GSP+ are required to comply with an additional number of international conventions protecting human rights, the environment and good governance. As provided in Article 9 of the Regulation (EU) No 978/2012, beneficiary countries must indeed ensure the effective ratification and implementation of a set of 27 international conventions, and accept the reporting requirements under the Conventions as well as monitoring and review of their implementation.

The requirements to ratify these conventions are thus much more specific than in TSD chapters, which usually merely engage countries to respect fundamental labour and human rights and strive to ratify ILO Conventions. Indeed, the language used in TSD chapters is mostly non-binding (the parties aim to “promote”, “reaffirm their determination”, “make efforts”, “undertake to cooperate”). It should also be noted that in contrast to TSD chapters, which place parties on an equal footing, GSP programmes are specifically tailored for providing market access to more vulnerable trade partners. GSP programmes thus provide stronger ‘carrots’ than TSD chapters, as their ILO convention ratification is required: this prerequisite, on the part of the EU trade partner, conditions the countries’ preferential access to the EU market, which thus embodies a genuine incentive for ratification.

Second, as opposed to TSD chapters, which lack enforcement mechanisms, GSP’s preferential arrangements may be withdrawn temporarily in cases of non-compliance. Article 19 of the EU regulation thus provides that all preferential arrangements may be