Enforceable social clauses in trade agreements with ‘bite’? Implications of the EU–South Korea Panel of Experts Report of 20 January 2021

• The EU–South Korea Panel of Experts Report (‘the Report’) confounded expectations by asserting that it had jurisdiction to consider a breach of core labour standards under the relevant provision of the relevant Free Trade Agreement (FTA), regardless of whether there was an impact on trade.
• The Report asserts that freedom of association principles are not so vague or uncertain that they cannot be subjected to scrutiny under trade agreements, relying on established international human rights norms and International Labour Organization standards, as interpreted and applied by the Committee on Freedom of Association and other UN supervisory bodies.
• The Report makes reference at various significant junctures to the role of sustainable development provisions as a basis for understanding the relationship between economic, environmental and social objectives, which are stated to be interrelated. There is an indication that a different decision could be reached regarding the relevance of freedom of association to trade on this basis. There are some significant findings regarding the implications of freedom of association principles concerning its application to persons not formally designated ‘workers’, relating also to trade union rights to registration and collective bargaining.