International Law at Work

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INTERNATIONAL LAW AT WORK

INTERNATIONAL LAW has long recognized that human rights vest in people who work. Many point to the 1919 Treaty of Versailles, which established the International Labour Organization (ILO), as the genesis of this tradition.¹ The Treaty of Versailles called for domestic protection of the right of association, reasonable wages, an eight-hour day and a forty-eight-hour week, equal remuneration for men and women, equal rights for migrant workers, and a prohibition against child labor. To date, the ILO has adopted more than 180 conventions, more than 190 recommendations, and numerous resolutions articulating labor standards on, for example, minimum wages, maternity leave, protection of agricultural workers, social security, health and safety, and freedom of association. Two of its most prominent conventions, Conventions 87 and 98, set out detailed requirements addressing, respectively, the right to form a union and the right to bargain collectively.²

International labor rights received additional attention after the Second World War. The Universal Declaration of Human Rights prohibits discrimination and slavery and enshrines a host of procedural and substantive rights that protect workers from the arbitrary exercise of power at work. The International Covenant on Civil and Political Rights guarantees the right to freedom of association, including the right to form and join a trade union, and also prohibits slavery and discrimination.³ The International Covenant on Economic, Social and Cultural Rights enshrines a wide range of labor rights, including rights to work, fair wages and equal remuneration for work of equal value, safe and healthy working conditions, as well as rights to join a trade union, bargain collectively, and strike. It also obligates States to provide technical and vocational guidance and training programs to workers.⁴ The Convention on the Elimination of All Forms of Discrimination Against Women obligates States to take measures to eliminate discrimination against women in employment.⁵ The Convention on the Rights of the Child obligates States to enact minimum age legislation and to provide for appropriate regulation of the hours and conditions of employment to protect children from economic exploitation.⁶

Regional initiatives provide labor rights with an additional level of international legal protection. The European Social Charter enshrines a wide range of labor standards with which all EU countries must comply.⁷ Within the European Union, the Charter of Fundamental Rights enshrines freedom of assembly, including rights to form a trade union, to bargain collectively, and to strike,⁸ and the European Commission possesses the authority to issue directives on labor standards applicable to all member countries.⁹ European trade liberalization and integration occur hand-in-hand with harmonization of social policies, including labor standards, but the EU also involves certain redistributive mechanisms between countries. In North America, although the North American Free Trade Agreement¹⁰ does not call for regional harmonization of labor standards, it does have a side agreement on labor that calls on parties to enforce existing domestic labor laws, and provides for a dispute resolution mechanism for persistent patterns of abuse in the areas of occupational health and safety, child labor, and minimum wage.¹¹

Given that labor rights receive so much international legal attention, it is worth asking why. At the risk of reducing the rich diversity of perspectives on this question, scholarship reveals two dominant ways of answering it, their difference marked by the way they link international legal protection of labor rights to their status in domestic legal orders. The first holds that international labor rights are necessary to advance the goals of domestic labor law. Accounts of the goals of domestic labor law abound, grounded in procedural and substantive values as diverse as efficiency, democratic self-government, human dignity, equality, and fairness in the institution of work. From this perspective, international labor rights provide a floor of protection that prevents international competition from undermining the goals that domestic labor law seeks to advance. Grounded in a political conception of human rights, this approach notes that the founding of the ILO was fueled in part by concerns of States that domestic labor market regulation would increase the costs of production and create competitive disadvantages as against States that chose not to protect the rights of workers. International protection of labor rights, on this view, is instrumental to the successful operation of domestic labor law regimes.

The second approach sees labor rights as specific instantiations or derivative of more general human rights, which in turn speak to and protect universal features of our common humanity. Although what labor rights might entail in terms of labor market regulation might vary from State to State depending on the nature of their national economies, at a certain level of abstraction, they possesses universal value as instruments that protect essential features of what it means to be human. This view, grounded in a moral conception of human rights, also sees the relationship between domestic and international labor rights in instrumental terms. But whereas the first claims that international protection is necessary to ensure domestic protection, the second claims the inverse, namely, that domestic protection is necessary to ensure international protection. On this approach, domestic labor rights, not their international counterparts, are understood in instrumental terms, as necessary to tailor what international labor rights, understood in intrinsic and universal terms, require in different domestic contexts.

Both approaches capture important truths about the relationship between domestic and international protection of labor rights. However, this chapter argues that both fail to grasp the legal significance of international labor rights. The first wrongly presupposes the existence of an international economic order made up of nationally bounded economies primarily dedicated to the mass production of goods and services, and it falters in the face of allegations of protectionism. The second approach fails to provide a persuasive account that the actual content of international labor rights relates to universal features of what it means to be human. Both miss the true normative significance of international labor rights, which lies in their capacity to monitor the structure and operation of the international legal order.

LABOR RIGHTS AS INSTRUMENTAL RIGHTS

Labor law, in countless domestic contexts, has long sought to promote just conditions of employment through a combination of rules premised on freedom of contract and general legislative imperatives. Rules premised on freedom of contract enable employers and employees, acting either individually or collectively, to negotiate the terms and conditions of employment. General legislative imperatives, such as minimum wage legislation, seek to guarantee a basic set of entitlements to employees regardless of the respective bargaining power of the parties. While their relative influence varies dramatically from country to country, the combination of contractual freedom and a minimum floor of worker entitlements amounts to much of what constitutes domestic labor law in most, if not all, jurisdictions in the world.¹²

Labor law also tends to imagine employers and employees as occupying radically distinct roles in processes of production. Employers are treated as legal actors responsible for the allocation of capital and labor. Employees are held responsible for supplying the labor necessary for production to occur. In light of this rough division of responsibilities, labor law seeks to enable the parties themselves to determine the terms and conditions of their ongoing relationship against a differentiated background set of general legal entitlements. Employers tend to benefit from a background set of proprietary and managerial entitlements, whereas employees typically enjoy a set of legislative entitlements relatively immune from employers’ superior bargaining power.

Confronted by the sheer economic and political power of labor movements, States became increasingly committed to this form of domestic labor market regulation after the First World War. The Russian revolution of 1917 marked the beginning of the spread of communism in the twentieth century. Economic and political elites in numerous European and North American jurisdictions moved quickly to rein in the radical potential of labor movements in their midst. States enacted legislation protecting workers from the superior bargaining power of their employers by guaranteeing workers certain rights, addressing matters such as minimum wages and maximum hours and rights to form a union, bargain collectively, and strike in order to improve their terms and conditions of work.

Some argue that domestic protection of labor rights was a preemptive strategy by capital and States to blunt the threat of communism.¹³ A related view is that domestic protection enabled States to coopt the power of labor by channeling its political force into regularized, rule-governed patterns.¹⁴ Other accounts assume a normative stance by either ascribing an altruistic agenda to those responsible for reform or implicitly if not explicitly disputing the proposition that legislative intent exhausts the normative significance of domestic labor rights. Such accounts characteristically focus on how labor rights promote procedural and substantive values such as democratic self-government,¹⁵ human dignity,¹⁶ equality,¹⁷ and fairness¹⁸ in the institution of work. Still others claim that at least certain kinds of labor market regulation promote economic efficiency by correcting market failures and reducing transaction costs.¹⁹

The key point here, however, is not why States were committed to the domestic protection of labor rights but instead that, whatever the goals of domestic labor law were, they were the reasons why States sought international protection of labor rights. Without international protection, domestic protection would fail. Capital would relocate to jurisdictions that offered more labor market flexibility, and not invest in jurisdictions that required extensive worker protection. Races to the bottom would ensue as States would engage in regulatory competition to attract capital, direct investment, and employment opportunities. If labor costs were included in the range of factors that comprise a State’s competitive advantage in international regulatory competition, there would be relentless pressure to relax domestic protection of workers’ rights, which would undermine the fragile truces between labor and capital that domestic protection possessed the potential to produce.

Moreover, it is now commonplace to note that processes associated with economic globalization—the strengthening of international economic interdependence associated with enhanced technological, commercial, and financial integration of national economies—is redefining traditional geographical and political barriers to the production, placement, and sale of goods and services. With States gradually dismantling tariff barriers and actively seeking new forms of direct foreign investment, corporations are said to enjoy an unparalleled degree of capital mobility. According to some, the “exit options of capital have increased strongly and global competition has emerged, making state power over national production and finance correspondingly weaker.”²⁰ In such an environment, the traditional model of domestic labor law that weds individual or collective contractual freedom with a minimum floor of worker entitlements increasingly appears to create incentives on firms to reduce labor costs by relocating to jurisdictions with less protective labor regulation.

The normative significance of international labor rights, from this perspective, lies in their capacity to protect the domestic rights of workers from international competition. International labor rights remove competition over labor costs from the regulatory and managerial calculus. In an ideal world of universal State compliance, firms would not be able to reduce labor costs by investing in or relocating to jurisdictions with relatively lower labor costs than others. By establishing a floor set of entitlements, international labor rights constitute “between employers and countries, a code of fair competition.”²¹ International protection of labor rights, on this view, is instrumental to the successful operation of domestic labor law regimes.

This understanding of the relationship between international and domestic labor rights helps to explain the motivations of States in the establishment of the International Labour Organization in 1919. First established by the Treaty of Versailles as a parallel organization to the League of Nations, then as a specialized agency affiliated with the United Nations, the ILO has been the preeminent international body concerned with the promotion and enforcement of international labor rights and standards. It operates through tripartite mechanisms that include State and non-State actors in the formulation of international law and that encourage transnational alliances among workers and firms. It identifies international labor rights and standards by enacting recommendations, resolutions, declarations, and conventions. Recommendations and resolutions typically are aspirational in that they set standards to which States ought to adhere as a matter of international and domestic law. A declaration is a “formal and solemn instrument suitable for rare occasions when principles of lasting importance are being enunciated.”²² Conventions are binding at international law on those States that have ratified their terms; as is the case with all international law, whether conventions are domestically binding depends on the domestic law of individual States.

In addition to confronting “the risk of revolutionary agitation and contagion” created by “the Bolshevist threat,”²³ the founding of the ILO was a response to concerns by States that domestic protection of labor rights would increase the price of production and create competitive disadvantages as against States that chose not to legislate to protect the interests of workers. Having accepted—in some if not all cases, grudgingly—the social justice of domestic labor standards and collective bargaining law, States looked to the ILO to ensure that domestic protection of workers did not produce international competitive disadvantage.²⁴ The Constitution of the ILO gives voice to this expectation, declaring that “the failure of any nation to adopt human conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own country.”²⁵

The ILO Constitution further calls on member States to commit themselves to various forms of domestic protection of workers’ rights, including the establishment of a maximum working day and week; regulation of labor supply; the prevention of unemployment and provision of an adequate living wage; the protection of workers against sickness, disease, and injury arising out of employment; the protection of children, young persons, and women; provision for old age and injury; the protection of workers when employed in countries other than their own; the principle of equal remuneration for work of equal value; recognition of the principle of freedom of association; and the organization of vocational and technical education.²⁶ Failure to do so would “produce unrest so great that the peace and harmony of the world are imperiled.”²⁷

Although it is relatively clear that those responsible for the creation of the ILO viewed international labor rights, in part at least,²⁸ as instruments necessary to shield domestic protection of workers from international competition, conceiving of them in these terms today suffers from several flaws. First, it presupposes an international economic order comprised of nationally bounded economies primarily dedicated to the mass production of goods and services. This was, in fact, the international economic order that existed when the ILO was created—at least among most States responsible for its creation. It was a time of rising unionism, standardized employment relations, direct State involvement in a wide range of economic activities, and various forms of social corporatism. Mass production was the dominant form of productive relations under the sovereign power of States responsible for the establishment of the ILO.²⁹

Mass production typically requires a centralized, hierarchical, and vertically integrated firm that enables the separation of management and execution of production, the disaggregation of work into specific components and fragmented tasks, and the establishment and maintenance of a workforce governed by narrowly defined job classifications.³⁰ On this model, to retain workers and minimize training and monitoring costs, employers establish internal labor markets in which seniority provides advancement and offer deferred compensation schemes by which workers earn less than their marginal product early in their careers and more later on in their careers.

This conception of international labor rights tempers its protectionist implications by implying that races to the bottom will adversely affect all States because they threaten international peace and security. The ILO’s Constitution itself warned that if States fail to protect workers, this will result in “injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled.”³¹ Like all races, however, where you end up depends in part on where you start, and a deregulatory race to the bottom has more of a negative impact on employers and employees in industrialized States than those in non-industrialized States. Were such races to occur, labor standards in industrialized States would fall, whereas labor standards in non-industrialized States would simply not rise. Capital relocating from the former to the latter would cause economic dislocation in industrialized States but generate economic growth in industrializing States.

Second, evidence suggests that firms simply do not behave in ways that this account of international labor rights assumes. The extent to which capital actually enjoys enhanced geographical mobility in light of economic globalization varies dramatically across firms, industries, regions, and States. In the words of Colin Crouch, “the mobility of productive capital in the sense of factories, distribution chains and points of service delivery is in practice far more restricted than the theoretical concept of unrestricted capital movements implies.”³² Labor costs are but one of many factors that firms take into account when making decisions about where to engage in production. As a result, States with lax labor standards do not necessarily gain a competitive advantage against States with robust worker protection laws. Brian Langille puts it bluntly: “there is no evidence of gains in either trade performance or in foreign direct investment associated with lower labor rights.”³³

Third, not only does this account of labor rights not speak adequately to the needs and interests of workers in non-industrial contexts, but it also is increasingly out of step with the economies from which it was forged. The national economies that it presupposes have undergone dramatic transformations in recent years. Through teamwork, participatory production, and atypical forms of employment, flexible forms of production are emerging in industrialized economies that tend to blur boundaries within firms, producing new kinds of workers not easily comprehended by traditional legal categories, including those who benefit from flexibility, those for whom flexibility means disposability, and those who do not possess the requisite skills or opportunities to participate in the opportunities that flexible production provides.³⁴ Through contracting, subcontracting, outsourcing, and other forms of corporate and institutional collaboration, flexible production also decentralizes decision-making and often blurs boundaries between firms, giving rise to entities designed to be easily redesigned.³⁵

As a result, firms are promoting employment relations and transforming into entities that confound the application of legal categories, such as employer and employee, that are essential to the successful application of domestic labor law regimes. In the words of Manuel Castells, who “are the owners, who the producers, who the managers, and who the servants, becomes increasingly blurred in a production system of variable geometry, of teamwork, of networking, outsourcing, and subcontracting.”³⁶ Flexible forms of production simultaneously destabilize labor law’s capacity to attach rights and responsibilities to employers and employees while generating distributional consequences that pose dramatic challenges to the capacity of labor law to promote justice at work. Characterizing the legal significance of international labor rights in terms of their instrumental relationship to traditional forms of domestic labor law risks grounding them in potentially anachronistic and ineffectual forms of domestic labor market regulation.

Finally, if the purpose of international labor rights is to protect domestic forms of labor market regulation from the corrosive effects of international competition, then their normative significance lies simply in their instrumental capacity to secure just relationships between employers and employees in a domestic context. On this account, domestic labor law does the heavy normative lifting by regulating labor markets to protect certain interests of workers from the power of capital. International labor rights merely provide a backstop by making it difficult for States to engage in regulatory competition and for corporations to obtain a competitive advantage from the cost of labor in another jurisdiction. The structure and operation of the international legal order, as opposed to the structure and operation of domestic legal arrangements, on this account, are not relevant to the nature and purpose of international labor rights. What this approach fails to grasp is that the international legal order itself produces certain kinds of injustices that cannot be mitigated simply by international affirmations of domestic initiatives that require employers to treat its employees within a given jurisdiction more fairly.

LABOR RIGHTS AS UNIVERSAL RIGHTS

Vying with the view that the international protection of labor rights is necessary to ensure domestic social justice is an alternative conception of international labor rights that defines their international significance in universal terms. Toward the end of the Second World War, ILO delegates issued the 1944 Declaration of Philadelphia, which restated the aims and the objectives of the ILO in universal terms. It declared that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.” It also stated that “the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy,” and concluded that “the principles set forth in this Declaration are fully applicable to all peoples everywhere.” The 1944 Declaration was “subsequently incorporated as the central article of faith in the amended ILO Constitution.”³⁷

The conception of international labor rights at the heart of the 1944 Declaration, labor rights as specific instantiations of universal human rights, set the stage for their inclusion in the broader register of civil, political, social, and economic rights protected and promoted by international and regional human rights institutions. From its post-war, formal inception as a distinct field of law, international human rights law has regarded labor rights as human rights that merit international legal protection. The architects of the field regarded labor rights as protecting universal elements of what it means to be a human being in the face of sovereign power. This vision of labor rights differs from the conception of labor rights that initially launched their international protection under the auspices of the ILO. Originally understood, international labor rights operated primarily in instrumental terms, working to protect the domestic rights of workers from international competition. On a universal account, the normative significance of international labor rights lies in the universality of the interests they seek to protect.

At the heart of this idea of labor rights is the Universal Declaration of Human Rights of 1948, a unanimous resolution of the U.N. General Assembly in December of the same year. The Universal Declaration enshrines freedom of association; rights to work, form a union, and bargain collectively; just and favorable conditions of work; protection against unemployment; equal pay for equal work; just and favorable remuneration; reasonable limitation of working hours and periodic holidays with pay; and an adequate standard of living. The ILO’s Committee of Experts regards ILO Conventions as instruments that elaborate and translate into binding terms the nature and scope of freedom of association as guaranteed by the Universal Declaration of Human Rights. In the words of the Committee of Experts, “the ILO’s standards on human rights along with the instruments adopted in the UN and in other international organizations give practical application to the general expression of human aspirations made in the Universal Declaration, and have translated into binding terms the principles of that noble document.”³⁸

Many if not all of the rights enshrined in the Universal Declaration are also rendered binding in conventional international law through and by several treaties overseen and monitored by United Nations institutions. Each of these treaties establishes a specialized body charged with the oversight of treaty performance, and imposes regular reporting obligations on States parties to promote a dialogue between each State and the relevant treaty body, in the expectation that such measures will lead to progressive improvements in compliance. Some of these treaties allow for individual complaints to be heard by a treaty-monitoring body that possesses the authority to express its views on whether a State is in breach of its treaty obligations.³⁹

Of these U.N. treaties, two specify in greater detail what freedom of association—a right that is said to vest in all of us—requires in the context of work. The first, the International Covenant on Economic, Social, and Cultural Rights, came into force in 1976. In addition to enshrining rights to work, fair wages and equal remuneration for work of equal value, and safe and healthy working conditions, and obligating States to provide technical and vocational guidance and training programs to workers, the ICESCR enshrines rights to form a union, bargain collectively, and strike. Article 8(1)(a) of the ICESCR protects the right of workers to form and join trade unions for the promotion and protection of their economic and social interests. Article 8(1)(b) provides that trade unions have the right to form national or international federations. Article 8(1)(c) enshrines the right of trade unions to function freely. Article 8(1)(d) guarantees the right to strike. In recent years, the Committee on Economic, Social, and Cultural Rights has consistently held that the right of a trade union to function freely, as guaranteed by article 8(1)(c), includes a right to bargain collectively. In its 2001 Concluding Comment on Korea, for example, the CESCR reminded Korea that “the provisions of article 8 guarantee for all persons the right to freely form and join trade unions, the right to engage in collective bargaining through trade unions for the promotion and protection of their economic and social interests, as well as the right to strike.”⁴⁰ Similarly, in its 2001 Concluding Comment on France, the CESCR called on France to ensure that its requirement that trade unions demonstrate “representativity” does “not impede the right of trade unions to participate freely in processes such as collective bargaining, irrespective of their size, in accordance with article 8(c) of the Covenant.”⁴¹

The second U.N. treaty of relevance is the International Covenant on Civil and Political Rights.⁴² The ICCPR is accompanied by a Protocol that authorizes the U.N. Human Rights Committee to hear complaints from individuals or governments regarding the failure of signatory States to effectively protect the rights enshrined in the Covenant. Article 22(1) of the ICCPR provides that “[e]‌veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.” The armed forces and police are not protected by this provision. Restrictions of freedom of association may be imposed for reasons of “national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

Whether due to reluctance or a lack of opportunity, the Human Rights Committee initially had little to say about freedom of association in the context of work. In 1986, in JB v. Canada, the Human Rights Committee assessed whether a legislative prohibition on striking public employees constitutes a breach of article 22 of the ICCPR. In its decision, the Committee expressed no view on whether article 22 protects the right to bargain collectively, but it stated that article 22 does not protect a right to strike.⁴³ Its reasons were sparse. The Committee subsequently reversed itself and concluded that article 22 does protect a right to strike. In its 1999 Concluding Comment on Chile’s periodic report on compliance with the ICCPR, for example, it expressed “serious concerns” over a Chilean law that imposed a general prohibition on “the right of civil servants to organize a trade union and bargain collectively, as well as their right to strike, … under article 22 of the Covenant.”⁴⁴

The Human Rights Committee has also recently made it clear that article 22 protects the right to bargain collectively. In its 1999 Concluding Comment on Chile, for example, the Committee advised Chile to “review the relevant provisions of laws and decrees in order to guarantee to civil servants the rights to join trade unions and to bargain collectively, guaranteed under article 22 of the Covenant.”⁴⁵ In its 1999 Concluding Comment on Costa Rica, the Committee noted “with concern that freedom of association, including the right to collective bargaining, is not adequately respected in conformity with article 22 of the Covenant.”⁴⁶ In its 1999 Concluding Comment on Canada, the Committee stated that Canada “has not secured throughout its territory freedom of association,” noting in particular that Ontario’s “workfare” program, which prohibits participants “from joining unions and bargaining collectively, affects implementation of article 22.”⁴⁷

Like the conception of labor rights that underpinned their emergence in international law, universal accounts of labor rights also posit an instrumental relationship between their international and domestic protection. But whereas the first account sees international labor rights as necessary to secure their domestic counterparts from international competition, the second suggests the inverse, that domestic protection is necessary to ensure international protection. On this approach, domestic procedural rights to form a union, bargain collectively, and strike are necessary to secure freedom of association for all workers, and domestic substantive rights, such as a right to a minimum wage and maximum hours, are linked to other universal norms, such as freedom and equality. This approach explains the existence of some international labor rights, like those that vest in public sector workers, in ways that an instrumental conception—one that comprehends them as instruments that protect the domestic rights of workers from international competition—cannot.