Conveniência da inserção da cláusula social nos acordos da organização mundial do comércio para os países não desenvolvidos

Abstract

After the UN, the WTO is certainly the greatest creation of International Law regarding International Organizations. It is currently an International Organization in crisis; however, economic, historical, legal, technical, political, and philosophical reasons will ensure its survival and allow it to fulfill its mission, which is to improve people's lives through the regulation and administration of international trade. Developed countries, especially the USA, have historically argued that the WTO should include a social clause in its trade agreements, that is, minimum labor rights. They argue that international trade without respect for the social clause constitutes dumping, and therefore unfair competition, and thus the organization's sanctioning power should be applied to force members to enforce this minimum labor right. Developing countries, in contrast, have argued that the social clause within the WTO serves the protectionist purpose of developed countries, because instead of seeing the lower labor costs in developing countries as a legitimate comparative advantage, they see it as social dumping, which prevents them from accessing markets in developed economies. This work, therefore, observed that the provision and application of trade sanctions do not lead to the development and effectiveness of labor law, an assertion based on the analysis of cases filed with the WTO up to 2014 and on the analysis of the particular situation of Mexico, a country that has been under the yoke of a trade agreement that provides for compliance with minimum labor rights, under penalty of sanction, since 1994; however, despite having an economy similar to Brazil's, over the period of 30 years, its progress in the UN's HDI has been less than that of Brazil. Subsequently, it became clear that the concept of social dumping does not legally exist, and even if the ILO's fundamental conventions were one day adopted by the WTO as a social clause, as advocated by some developed countries, there would still be no normative harmonization regarding labor, since there is certainty and uniformity only regarding the concept of forced labor. Other matters addressed in the fundamental conventions bring and allow for diversity, a reality that makes the healthy existence of social dumping impossible. The OECD, a leader in free trade regulation, recommends the social clause, but does not foresee sanctions as a means of its effectiveness. Statistics show that the US and the EU, developed markets, use anti-dumping measures in much greater quantities than Brazil, for example, hence the clear evidence that the defense of social dumping is more of a protectionist tactic than a real desire for the development and effectiveness of labor law. Therefore, the progress of labor law in each country's economy is advocated, each according to its history, context, possibilities, and sovereignty, and not out of fear of trade sanctions.