This chapter argues that “solidarity” should be understood as being “unbound” by geographical or temporal borders. As such solidarity can be inclusive, involving collective action and worker voice, engaging empathy rather than merely shared identity. In this way, connections are made between solidarity and sustainability, which entails cross-border intra-generational and inter-generational commitments as well as activity by civil society, including trade unions, for its realization. In this context, the chapter examines the United Nations Sustainable Development Goals adopted in 2015, identifying their recognition of inclusive solidarity in the context of decent work and their potential limitations. The influence of these aspirations on the European Pillar of Social Rights 2017 is also considered, alongside the ways in which the Pillar and (indirectly) the SDGs are being translated from a form of soft law into harder EU legislative forms. In this respect, the European Commission’s new policy agenda for 2020 is interrogated. It is argued that there is scope for transnational (unbounded) worker solidarity to be actualized through a sustainability agenda instantiated into both soft and hard EU law, but its realization is some way off.

This chapter examines the multifaceted content of Sustainable Development Goal (SDG) 8, Decent Work and Economic Growth, and its relationship with the other SDGs. It argues that, if the aim of SDG 8 is to end exploitative employment practices, then its stress on ‘decent work for all’ should inform the interpretation of all relevant targets and indicators. This is achievable insofar as SDG 8 offers inclusive protection of migrant and other precarious workers, attending to discrimination in the labour market. Also vital is the recognition of collective voice for all those at work, as advocated by International Labour Organization (ILO) and UN reports. While ILO and UN human rights instruments and institutions inform and promote this approach to SDG 8, international economic and investment law as well as financial institutions have the capacity to limit its potential. There are, however, positive shifts on the horizon, which include transnational collective bargaining and policy initiatives encompassing state and non-state actors.

This chapter analyses the evolution of International Labour Organization (ILO) standards governing who is entitled to claim collective labour rights. It argues that the personal scope of such rights extends beyond ‘the standard employment relationship’, with implications for the scope of competition law. The first part analyses treatment of freedom of association and collective bargaining in constitutional and other declaratory ILO instruments, identifying the broad protectorate of these entitlements, reflecting the desire to promote equality and resist commodification of labour. These constitutional norms have been further reinforced by proposals for a universal labour guarantee and acknowledgement of the role of collective voice in promoting sustainability. The second part examines fundamental ILO Conventions Nos 87 and 98 on the right to organise and collective bargaining, Recommendation No. 198 on the employment relationship and the findings of ILO supervisory bodies which apply these standards in a manner consistent with established constitutional norms. While supervisory bodies encourage states to consult with social partners to modify existing collective bargaining systems to reflect the needs of ‘self-employed workers’, this should be understood less as a concession to managerial prerogative, but more as promotion of reform protecting the vulnerable in a changing world of work.

Introduction

This chapter focuses on the contemporary framing of sustainability in the context of the adoption by the UN General Assembly (UNGA) on 25 September 2015 of Agenda 2030 and the Sustainable Development Goals (SDGs). Agenda 2030 offers an opportunity to examine the shift from the distinct itemisation of the ‘pillars’ of sustainable development to a more holistic vision of interdependent policies and objectives and, potentially, to a more inclusive understanding of sustainability (see Chapter 1, penultimate section). In this setting we will consider the potential coherence and tensions between attempts to protect ‘people’ and the ‘planet’ while promoting ‘prosperity’, ‘peace’ and ‘partnership’. This demands examination of processes of decision making underpinning (a) goal-setting, (b) the content of SDGs and (c) supervision of their implementation at the UN level. It is beyond the scope of this chapter to investigate more fully the processes of decision making operating at national or regional levels. In particular, we consider how sustainable development still operates as a ‘directing principle’ (de Sadeleer, 2002), as discussed in Chapter 1 and whether, in the words of SDG target 16.7, there has been and will be ‘responsive, inclusive, participatory and representative decision-making at all levels’.

Indeed, it is the idea of inclusion that drives our analysis in this chapter. We begin by attending to who the drafters were and their intentions, as are revealed by debates surrounding the preparatory documentation and processes. We then consider the SDGs themselves together with the scope for debate (and even conflict) regarding their content and their interaction. For example, we are alert to the dangers of subsuming the environmental within economic objectives, as well as obscuring social concerns (including human rights norms) behind these two more dominant aims (see Chapter 1). We also find continuities with previous legal and policy instruments concerned with sustainable development, such as the emphasis placed on poverty in SDG 1 and redistributive justice in SDG 10, together with notable enhancement of certain standards, such as that relating to gender in SDG 5 and work in SDG8.

Sustainability has dominated the policy discourse for at least five decades, with its most popular articulation to be found in the Brundtland report in 1987 (World Commission on Environment and Development, 1987). Today, Agenda 2030 and the Sustainable Development Goals (SDGs) (UN, 2015) have renewed concern with legal perspectives on sustainability, for, at the European and domestic levels, sustainability and sustainable development are prominent in policy, and also in legally binding instruments. Examples include Article 3 of the Treaty on EU, which makes sustainable development a goal for the Union, and the environmental integration principle in Article 11 of the Treaty on the Functioning of the European Union. Sustainable development was mainstreamed into the Europe 2020 strategy in 2010 (EU, 2010), it is included in the 7th Environmental Action Programme and more recently a Communication from the Commission considers the steps for a sustainable European future integrating the SDGs in the European policy framework (European Commission, 2016). At the domestic level, in the UK sustainable development was introduced as the main aim of the Environment Agency with the Environment Act 1995 and today there are a number of statutes incorporating sustainable development as an aim or duty (such as the Marine and Coastal Access Act 2009 and the Well- being of Future Generations (Wales) Act 2015).

Although the policy roots of sustainability date back over 50 years and the sustainability rhetoric today is more visible than ever in the SDGs, the meaning of sustainability and its relationship with law remain highly contested and complex. Indeed, the mainstreaming of sustainable development has not meant homologation. Distinct legal fields, p ermeated by s ustainability, e ngage with s ustainability differently. This book reflects on the multiple intersections of law and sustainability in a variety of fields. Only by considering sustainability through different l egal s ources a nd fi elds is it po ssible to provide a more comprehensive analysis of the way in which sustainability discourses push certain legal boundaries and the way in which the law itself pushes sustainability in multiple directions.

Introduction

The idea of labour standards as constitutive of ‘sustainability’ has begun to emerge in the sphere of the academic literature on labour law (Galgoczi, 2014; Frey and McNaughton, 2016; Polomarkakis, 2019). Previously, analysis tended to be confined largely to the ways in which regulation of labour markets and trade union action could promote (or obstruct) inter-3generational environmental sustainable development (Lund, 2004; Räthzel and Uzzell, 2013). The notion that labour law might be itself a key facet of the ‘social’ and ‘economic’ pillars aimed at intra-and inter-generational sustainability is only slowly taking hold. In this sense, connections are still being forged.

The notion that labour standards and sustainability are profoundly connected has been carried forward, to a limited extent, in the 2015 United Nations (UN) Sustainable Development Goals (SDGs) (Agenda 2030 Resolution A/RES/70/1). Examples include SDG 8, which aims to ‘[p] romote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all’, alongside SDGs 5, 10 and 16. The extent to which the targets in the SDGs cohere with the International Labour Organization (ILO) treatment of ‘decent work’ and the norms which the EU promotes in its trade policy will be considered.

Curiously, it is the European Union (EU) that has taken the lead on labour conditionality as a feature of sustainable development in the context of trade. Examples include the ‘Sustainability and Good Governance’ incentive provisions in the EU Generalised System of Preferences (Regulation (EU) No 978/ 2012) and design of ‘labour chapters’ as part of ‘sustainable development’ objectives in free trade agreements (FTAs).

The difficulty seems to be that the global consensus around labour as a facet of social and economic sustainability reflected in the SDGs is not a neat fit with ILO standards; nor does Agenda 2030 necessarily endorse the ways in which the EU pursues sustainability through its external relations policies. This chapter considers how these tensions may be resolved.

Introduction

This chapter points to the ways in which discussions regarding sustainability and sustainable development have shifted over time and proposes theoretically informed ways forward. Our historical timeline begins in the 1970s with what looks like the emergence of discrete atomistic strands of concern. One focus of attention for the international community was economic ‘development’, namely the prevention of poverty, in the context of integration into a global capitalist economy. The other policy initiative concerned the environment and acknowledged the need for international cooperation to prevent pollution and preserve biodiversity and ecosystems, evolving into current efforts to also tackle climate change. We address the evolution of these different trajectories regarding sustainable development and how they interact.

However, we see the historical narrative as going beyond a simple tale of tension and reconciliation. For to argue that sustainability or sustainable ‘development’ is all about economic objectives or even environmental aims is problematic. What may be more accurate is that we have witnessed a growing acknowledgement that both economic and environmental development need to be ‘sustainable’, that is, durable and long lasting. Tracing this change, we see an emerging recognition that social policy is vital to the achievement of both economic and environmental goals; hence the arrival of what came to be described as ‘three pillars’ of sustainability: economic, environmental and social. For critical environmental lawyers, this may seem a modernist and still fractured approach to sustainability, which would ideally be viewed as more holistic. For those engaged in social policy, such as labour lawyers, there has been frustration that labour standards and other aspects of social policy are then viewed by many as protected in a sustainability frame only to the extent that they are seen to connect to (and are subsumed by) the dominant strands of economic and environmental sustainability. Holism then has its dangers if it obscures the prioritisation of some objectives over others.

We argue that a historical account can offer more than a tired rehearsal of the various international and European debates that have occurred over the years and the concrete legal instruments they generate.

his chapter argues that capacity for corporate sustainability is shaped by over-arching rules determining trade and investment relations, but also that companies play a part in constructing those rules and their application. In this way, transnational state and corporate conduct are symbiotic, mutually capable of shaping each other. The General Agreement on Tariffs and Trade and the General Agreement on Trade in Services within the framework of the World Trade Organisation mediate the terms of import and export of goods and services, affecting corporate management of supply chain arrangements, but corporate influence also affects those rule-making and rule-administering processes. We investigate the capacity for norms promulgated through free trade agreements to affect the parameters of sustainable corporate conduct. Finally, we analyse the powers of corporations as investors, bearing in mind the current fragmented regime operating under international investment law alongside scope for reform.