Who Defines the Meaning of Human Rights at Work?
The UN Global Compact and the
ILO Declaration of Fundamental Rights
by
Janice R. Bellace
Samuel Blank Professor of Legal Studies and
Professor of Management
The Wharton School - University of Pennsylvania
Philadelphia, PA 19104-6340
USA
Tel +1-215-898-6820
Fax +1-215-573-8585
e-mail: bellace@wharton.upenn.edu
This paper was prepared for the European Regional Congress of the International Labour and
Employment Relations Association, Amsterdam, Netherlands, 20 – 22 June 2013.
© Janice R. Bellace, 2013. No written reproduction or quotation is permitted without the express
written permission of the author.
Who Defines the Meaning of Human Rights at Work?
1
Introduction
The UN Global Compact, company codes of conduct, and various certification, audit and
reporting entities use language that is similar to the language found in the ILO’s 1998
Declaration of Fundamental Principles and Rights at Work. Typically, there is no definition or
even discussion of what a term, such as “freedom of association,” means. For years, many
deemed the ILO to be the authority on what certain human rights at work mean. But, in June
2012, the Employers Group at the International Labour Conference attacked the ILO’s
Committee of Experts for discussing the right to strike as part of its commentary on Convention
No. 87, Freedom of Association and the Right to Organise.1 The criticism was fueled by the
Employers’ awareness that others were using the General Survey of the Committee of Experts as
a way of determining the scope of certain rights in statements, such as the UN Global Compact.
The Employers pointed out that “the critical issue was that its observations were being viewed by
the outside world as a form of soft law labour standards jurisprudence.”2
Over the past twenty years, many entities have entered the human rights space. Moreover,
human rights principles appear in instruments of several supra-national bodies, such as the
UN’s Guiding principles on business and human rights, the Organization for Economic Co-operation
and Development (OECD) Guidelines for Multinational Enterprises as well as the UN Global
Compact. Some, such as ISO26000, are nongovernmental.3 With no recognized hierarchy among
them, there is the question of who defines what human rights at work means.
This paper will discuss the two major pronouncements on human rights at work and will review
other entities active in this space. Noteworthy is the trend over the last two decades for
companies to accept that they have an obligation to act responsibly, a concept often called
corporate social responsibility (CSR). The orientation of CSR, however, is that each, individual
company makes its own judgments on what constitutes socially responsible behavior.4 In
contrast, the standard approach of international law is that governments accept legally defined
obligations set forth in a convention or treaty, and that as part of the obligation, the government
1
The Vice Chair of the Employers’ Group made these comments during the meetings of the Conference Committee on the
Application of Standards in June 2012.
2
International Labour Conference, 101st Session, Geneva, May-June 2012, Third Item on the Agenda: Information and reports
on the Application of Conventions and Recommendations, Report of the Committee on the Application of Standards,
Provisional Record 19 (Rev.), Part One/13, para. 49. Accessible at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--relconf/documents/meetingdocument/wcms_183031.pdf
3
This particular voluntary International Standard, issued in 2010, relates to “Social Responsibility,” and covers
many aspects including human rights and labor practices. http://www.iso.org/iso/discovering_iso_26000.pdf
4
Florian Wettstein, “CSR and the Debate on Business and Human Rights: Bridging the Great Divide,” Business Ethics
Quarterly, 22:4 pages 739-770 (October 2012).
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requires certain behaviors of those in its jurisdiction. This paper will conclude that companies
must accept that society has placed certain responsibilities on them to apply human rights in their
sphere of control. It will also argue that for the post-World War II concept of universal human
rights to remain valid, there must be agreement on what specific rights mean in practice and that,
in turn, requires acceptance of an international body’s legitimacy in making these
determinations.
Globalization and Workers’ Rights as Human Rights
2
Globalization has led to companies increasing their activity outside their home countries, both in
directly operated enterprises in foreign countries and in the amount of goods purchased from
foreign suppliers. Since 1990, there has been increasing concern about the impact of increasing
globalization on workers, and in particular since 1995 when the World Trade Organization
(WTO) was established. The conditions of work for those in the global supply chain labor have
attracted the attention of NGOs and others.5
Since the 1980s, technological advances and the dropping of trade barriers has led to the
phenomenon dubbed “globalization.” Although foreign direct investment has increased, the
most noticeable change has been in the direction of the flow of goods around the world.
Domestically owned companies, particularly in Asia and South Asia, produce goods purchased
by companies in the Europe and North America. There are two main models for global supply
chains, with many variants. In one model, the company makes nothing in its home country but
simply brands products made in other countries by its suppliers, such as Nike. In the second
model, the retailer sources from the lowest cost suppliers and who, as a result, buys most of its
products from suppliers outside its home country, such as Wal-Mart. Traditionally, companies
of the second type had not paid attention to labor policies at the suppliers’ factories since they
did not view themselves as employers, but merely buyers of finished products. The initial
response to the effects of globalized trade in the 1990s was led by unions and NGOs arguing in
favor of “fair trade” not free trade, with unions declaring that they were not against competition
but that fair competition required that the playing field had to be level.6
Human rights advocates and unions joined together in a movement to link international trade
policy and the granting of preferred trading status with observance of workers’ rights,7 based on
5
There are many non-governmental organizations (NGOs) and their main areas of concern vary. In this article,
the term is used to mean those NGOs who are interested in human rights and trade issues. NGOs have sought to
advance the observance of human rights in various ways, from direct pressure on companies to advocating that
international organizations act to spur companies to adhere to internationally-recognized human rights. For a
discussion, see STEVE CHARNOVITZ, Two Centuries of Participation: NGOs and International Governance, 18
M ICH. J. INT’L L. 183, at 216, 286 (1997)
2 Lance A. Compa, Free trade, fair trade, and the battle for labor rights [Electronic version]. In Lowell Turner,
Harry Katz & Ronald Hurd (eds.), Rekindling the movement: Labor’s quest for relevance in the 21st Century
(2001) at 314-338. Ithaca, NY: Cornell University Press.
7
For an excellent discussion of this approach, see EMILIE M. HAFNER-B URTON, FORCED TO BE GOOD:
WHY TRADE AGREEMENTS B OOST HUMAN RIGHTS (2009). See also Kevin Kolben, The WTO Distraction,
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a shared view of working conditions that in many low wage, export-oriented countries,
employers denied workers in highly labor intensive (such as garments, toys and electronic
assembly) basic human rights. As such, they lobbied strongly for social clauses in trade
agreements.8
In the 1990s, those seeking to redress perceived ill treatment of workers confronted difficulties.
Although the International Labour Organization (ILO) had been the leading international
organization dedicated to just treatment for workers, its primary means of achieving its mission
seemed inadequate. The tripartite ILO had adopted 180 conventions, but only those Member
States that had ratified a convention were obliged to apply it. While ratification rates were high
for European countries, they were quite low in other areas, especially in Asian low wage
countries which exported manufactured goods. Yet, even if a country had ratified a convention
and was required to report on its compliance with the convention, there was no quick and
effective enforcement mechanism for tackling non-compliance. The ILO’s supervisory
mechanisms could place a spotlight on failure to apply a convention, but for the most part moral
suasion was the sole means for encouraging compliance.
The newly-established WTO became the symbol of international trade policy and a particular
target of anti-globalization and human rights activists who wanted the WTO to take a human
rights stance. The drive to have the WTO consider a country’s observance of human rights and
labor standards hit a roadblock in December 1996 when the WTO, at its first biennial Ministerial
meeting, held in Singapore, declined to consider the issue. While stating that it renewed its
“commitment to the observance of internationally recognized core labour standards,” the WTO
took the position that the “International Labour Organization (ILO) is the competent body to set
and deal with these standards, and we affirm our support for its work in promoting them.” 9 The
WTO ministers held firmly to their conviction that that economic growth and development are
fostered by increased trade and further trade liberalization and that they “contribute to the
promotion of these standards.” 10
At the end of the 1990s, without the ability to link international trade policy to the observance of
human rights and core labor standards through the WTO, activists turned their attention to the
21 STANF. L. & POL’Y REV. 461 (2010) wherein the author argues that efforts to incorporate labor standards
into the WTO framework is misplaced but an approach focusing on bilateral trade agreements could prove more
fruitful.
8
Hafner-Burton acknowledges that historically some unions may have opposed free trade agreements altogether
and may have been motivated to have certain human rights standards inserted into such agreements as a
protectionist stance (to protect their own members’ against what was perceived as unfair competition). Id. at 3839.
9
This statement is part of paragraph 4 of the Ministerial Declaration adopted on 13 December 1996, the final day
of the meetings. SINGAPORE WTO MINISTERIAL 1996: MINISTERIAL DECLARATION,
WT/MIN(96)/DEC, 18 December 1996. http://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm
10
Id. They added that they rejected “the use of labor standards for protectionist purposes.”
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ILO and other international organizations as the means for heightening the effectiveness of
existing instruments in influencing companies to observe workers’ rights.
3
Identifying Human Rights at Work
During the course of the 1990s, the characterization of the key worker rights involved began to
move from “labor standards” to “human rights at work.” This may seem a minor terminological
change, but it reflects a major change in emphasis, and one that had a profound impact on the
public’s awareness of the issues involved. The term “labor standard” conveys an image of a
technical issue; for instance, whether workers should have fifteen minute breaks after working a
certain number of hours. While important, labor standards do not generate a passionate
response.11 In contrast, the term “human rights” connotes that something fundamental that is
owed a human being is at stake. There has, however, been a time lag between this change in
conceptualization of the rights involved and general awareness that human rights must be
respected at the workplace. For instance, in 2003 Mary Robinson observed that “virtually all of
the corporate social responsibility debates around the world make no reference to international
human rights standards.”12
3.1 The ILO and Human Rights at Work
Within the ILO there had been the tradition of placing conventions into three categories. First,
are those that protect basic human rights; second, those that require the maintenance of key
instrumentalities of social policy formation; and third, those establishing basic labor standards
(called technical conventions).13 In the 1990s, the ILO moved to highlight those conventions
that protect basic human rights. For reasons completely separate from the anti-globalization
protest, the ILO was already engaged in an effort to highlight core labor rights. With the fall of
the Berlin Wall in 1989, and the end of the Cold War, the continuing relevance of the ILO was
called into question. This led to a re-examination of the fundamental values that underpinned the
existence of the ILO as it approached its seventy-fifth anniversary in 1994.
Translation often presents difficulties. The author points out that the French “norms” is not fully conveyed in the
English “labor standards.” Even in countries that speak the same language, there may be a different connotation to
the same term. However, the author maintains that human rights conveys that something much more important than
a labor standard is at stake.
11
12
Quoted in the Foreword to R. Sullivan. 2003. Business and Human Rights: Dilemmas and Solutions, (Sheffield:
Greenleaf Publishing) page 9.
13
Bartolomei de la Cruz, Hector G., Geraldo von Potobsky and Lee Swepston. 1996. The International Labor
Organization: The International Standards System and Basic Human Rights. (Boulder, CO. Westview Press) pages
33-34. See also Virginia Mantouvalou, “Are Labour Rights Human Rights?,” European Journal of Labour Law,
2012:2 wherein the author agrees with the distinction between labor standards conventions and human rights
conventions. Accessible at http://ssrn.com/abstract=2007535.
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In Defending Values, Promoting Change,14 Director-General Michel Hansenne identified four
fundamental values which flowed from several core ILO conventions, all concerned with the
protection of basic human rights at work. Hansenne moved to achieve a consensus among the
ILO’s tripartite constituents on what specific rights would be deemed “fundamental” and equally
important, what specific conventions would be termed “core” conventions.
In June 1998, the ILO adopted a “Declaration on Fundamental Principles and Rights at Work,”
setting out four rights, “the principles concerning the fundamental rights which are the subject of
those Conventions,” namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
The Declaration makes clear that the four principles flow from the underlying conventions, and
in fact, that one cannot correctly understand the obligation imposed on Member States without
referring to the substantive requirements of the conventions. Understanding this relationship
between the fundamental principles and the underlying conventions is critical to understanding
that the text of the four principles is an abbreviated way of expressing the specific values,
concepts and requirements of the referenced conventions.
The 1998 Declaration links eight core conventions15 to the four fundamental principles, two for
each principle:
• Convention No. 87, Freedom of Association and Protection of the Right to Organise
(1948) and Convention No. 98, Right to Organise and Collective Bargaining (1949);
• Convention No. 29, Forced Labour (1930) and Convention No. 105 Abolition of Forced
Labour (1957);
• Convention No. 138, Minimum Age (1973) and Convention No. 182, Worst Forms of
Child Labour (1999)
• Convention No. 100, Equal Remuneration (1951) and Convention No. 111, Discrimination
(Employment and Occupation) (1958).
3.1.1. Coverage of the ILO Declaration
14
International Labour Organization. 1994. Defending Values, Promoting Change. International Labour
Conference, 81st Session. Report of the Director-General (Part I). Geneva: International Labour Office.
15
In 1998 seven conventions were formally linked to the four fundamental principles, since Convention No. 182,
Worst Forms of Child Labour, was not adopted by the International Labour Conference (ILC) until June 1999.
However, at the 1998 ILC, there was a report of the Committee on Child Labour which proposed that a
convention on the subject of child labour be placed on the agenda for the 1999 ILC. International Labour
Conference, 86th Session, Record of Proceedings, Vol. I, 19/1 -75, at 70-72. (ILO, Geneva).
http://www.ilo.org/public/libdoc/ilo/P/09616/09616%281998-86%29vol.1.pdf This met with very widespread
acceptance. As such, in 1998, it was anticipated that there would be a new convention on the subject of child
labor and that once adopted this new convention would be linked to the Declaration. It was added immediately
upon the ILC’s approval of Convention No. 182 in June 1999.
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The ILO’s constitution makes conventions binding only on ratifying Member States and only
those Member States are required to report on their compliance with the obligations imposed by
the ratified convention.16 Although the wording of a convention may imply that certain action be
taken by employers or workers, conventions are addressed to governments who are obliged to
take action to come into conformity with the provisions of the convention.
Prior to 1998, the only obligation placed on a Member State regardless of ratification was the
obligation to respect freedom of association and the effective recognition of collective bargaining
by virtue of membership in the ILO. The 1998 ILO Declaration substantially extended this
notion. First, it points out that “in freely joining the ILO, all Members have endorsed the
principles and rights set out in its Constitution”17 and it then observes that these principles and
rights have been “expressed and developed in the form of specific rights and obligations in
Conventions recognized as fundamental both inside and outside the Organization.”18 Having
laid the basis for imposing an obligation, the Declaration in section 2 “declares” that “all
Members, even if they have not ratified the Conventions in question, have an obligations arising
from the very fact of membership” in the ILO “to promote and to realize ….the principles
concerning the fundamental rights which are the subject of those Conventions.”19
3.1.2. Reporting under the ILO Declaration
The decision to impose an obligation on non-ratifying Member States to observe the principles
covered by a convention raised the question of whether these Member States’ application of a
convention would be monitored. The issue arose in an Organization where Member States were
familiar with a supervisory system in which ratifying Member States are required20 to report in
detail on compliance with conventions and where these reports where reviewed and commented
on by the ILO’s Committee of Experts.21 The annual report of the Committee of Experts is
16
Article 22 of the ILO Constitution sets forth the reporting requirement. The reports are examined by the ILO’s
Committee of Experts, comprised of twenty jurists, who are independent. They perform an impartial, objective
examination to determine if the Member State is applying the convention. The Committee of Experts produces an
annual report in which are published “Observations” about the situation in Member States. Direct Requests for
information addressed to the Member States are also appear online.
17
1998 Declaration, section 1(a).
18
1998 Declaration, section 1(b).
19
1998 Declaration, section 2.
20
ILO Constitution, Article 22.
21
Established in 1926, the Committee’s full name is the Committee of Experts on the Application of Conventions
and Recommendations. The Committee of Experts generally adopts its Report in December after a full
examination of the reports submitted by the Member States, and the Report is reviewed the following June at the
annual Conference. This committee of independent experts is completely separate and distinct from the
Committee on Freedom of Association. Established in 1951, the Committee on Freedom of Association is a
tripartite committee of the Governing Body which makes recommendations in cases brought to it by
complainants alleging specific violations of Conventions No. 87 and 98.
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examined by the International Labour Conference’s Committee on the Application of Standards.
Based on information contained in the Committee of Experts’ report, the tripartite Conference
Committee selects a number of individual cases of special concern to examine during the
Conference in June, following which the Conference Committee publishes its own report. As a
result of this longstanding comprehensive, thorough and public supervisory process, the
constituents of the ILO were accustomed both to reporting on obligations, and also of their
compliance with an obligation being subject to review.22 In addition, non-ratifying Member
States are occasionally surveyed with regard to the law and practice in their country with regard
to a specific convention, typically because the convention will be considered in a General Survey
by the Committee of Experts and the experience of both ratifying and non-ratifying states will be
covered. Non-ratifying Member States are constitutionally required to supply the requested
information.23 As such, there was a general expectation that an obligation would be subject to
some sort of review.
The 1998 Declaration created an innovative process, labeled “Follow-up to the Declaration,”
with the aim of producing an annual report.24 Thus, Member States which have not ratified one
of the eight core conventions were now required to respond to questions regarding the law and
practice in their country regarding the human right in question. Under the ILO’s constitution
obligations are placed on governments to take action to give effect to the provisions of a ratified
convention. It is assumed that governments are in position to ensure that these actions cover the
relevant actors, such as employers acting within their jurisdiction. Moreover, although the
obligation of governments with regard to unratified conventions is not precisely stated, the 1998
Declaration underscores the fact that governments have an obligation to act “in good faith” to
promote and “realize” the principles and fundamental rights.25
This distinction between regular reporting of ratifying Member States and the follow-up
procedure has, over time, decreased greatly in significance due to the success of the ILO’s
ratification campaign.26 When the Declaration was adopted in 1998, some of the core
conventions had low ratification rates. In 1995, the ILO had embarked on a campaign to
22
In addition, the Member States are accustomed to the reports of the Committee of Experts, the Conference
Committee on the Application of Standards, and of the Committee of Freedom of Association being published.
These reports are published and are available online.
23
ILO Constitution, Article 19(5)(e). The information received permits a discussion of perceived obstacles to
ratification. Also, there can be a discussion of how the convention is applied in countries which have not
ratified.
24
The Follow-up is found in the Annex to the Declaration. In June 2010, the Conference approved a revision to
the original text.
25
1998 Declaration, section 2.
26
At present, there are over 1,200 ratifications of these eight conventions, representing 86% of the possible
number of ratifications. Many Member States have ratified all eight fundamental conventions.
http://www.ilo.org/global/standards/introduction-to-international-labour-standards/conventions-andrecommendations/lang--en/index.htm
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increase the number of ratifications. At present, the ILO has 185 members. Six of the eight core
conventions have more than 170 ratifications. However, the two conventions dealing with
freedom of association (C. 87) and collective bargaining (C. 98) have only 152 and 163
ratifications, respectively. Significantly, several large countries have not ratified C. 87 or C. 98,
including the United States, China, and India.
3.2 The UN Global Compact and Labor
Four years after the WTO came into being, the reaction to the forces it unleashed were such that
the United Nations felt moved to comment. In many countries, there was popular resistance to
the idea of the WTO, a supranational body forcing changes that could impact negatively on the
lives of working people. The benefit of liberalized trade to business, especially transnational
businesses, was obvious but the benefit to working people, much less so. One can only speculate
that the negative reactions, especially by governments, prompted the UN to consider what its role
was in the trade liberalization debate.
On 31 January 1999, in a speech27 at the World Economic Forum in Davos, Kofi Annan, then
General Secretary of the United Nations, proposed the initiation of “a global compact of
shared values and principles.” Kofi Annan noted that the challenge was to devise a compact
on a global scale what would “underpin the new global economy. .. lay the foundation for an
age of global prosperity.” What he did not explain was what exactly motivated his response
to this challenge, in particular, why he sought a partnership with business although he
indicated that they were the key players in advancing a human rights agenda. In his speech,
he spoke directly to businesses: “Specifically, I call on you -- individually through your
firms, and collectively through your business associations -- to embrace, support and enact a
set of core values in the areas of human rights, labor standards, and environmental practices.”
Annan pointed out that he listed these three areas because they were ones where business
persons could make a difference, and because they were areas in which “universal values have
already been defined by international agreements.”
Annan made no reference to earlier UN initiatives28 of a more traditional nature, such as codes of
conduct seeking to regulate the behavior of transnational corporations that were the product of
the more cumbersome UN committee system. The idea of a global compact with business seems
to have originated directly from the office of the Secretary General, as did the selection of the
human rights to be highlighted. There is no record of any public debate or forum on the notion
of a compact with business.
The Global Compact was first proposed by Kofi Annan in January 1999 in a speech, and on 26
July 2000 the UN Global Compact was launched, in concept and substance virtually unchanged
27
For the text of the speech, see http://www.un.org/News/Press/docs/1999/19990201.sgsm6881.html .
28
For a review of this history, see Tagi Sagafi-nejad and John H. Dunning, The UN and Transnational
Corporations: From Code of Conduct to Global Compact (Indiana University Press, 2008).
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from what was said in the Davos speech. The massive anti-globalization street demonstrations
the occurred during the November 1999 WTO Ministerial Conference in Seattle most likely
imparted a sense of urgency to the drafting process. The principles29 in the UNGC are listed in a
curious fashion, with the first two committing businesses to support human rights generally.30
There is no definition of human rights given, or even listing of human rights documents. Then
there are four labor standards, three principles relating to the environment and one principle
relating to corruption. Nowhere is there any indication whether the two human rights principles
simply present an all-inclusive statement which covers the enumerated principles and some not
enumerated, or whether they are something different from the principles which are set forth in
principles 3 – 10.
Among the UNGC’s principles are four in a category simply labeled “Labour.” These four
principles word-for-word mirror the four fundamental principles of the ILO’s 1998 Declaration
as if the drafter of the Global Compact had cut and pasted them from the ILO Declaration into
the Global Compact draft. This is not surprising since Kofi Annan, in his 1999 Davos speech,
had specifically cited the 1998 ILO Declaration.
The UN Global Compact does acknowledge the source of these labor principles31 and even
states that the “Declaration calls upon all ILO Member States to apply the principles in line with
the original intent of the core Conventions on which it is based.” 32 But it says nothing more. It
does not indicate that a full and correct understanding of what these four principles mean can
only be grasped by reading the eight underlying ILO conventions. Nowhere on its website is
there any listing of the ILO core conventions on which each of these four fundamental principles
are based.33 As a result, it is difficult, if not impossible, to determine what each of the four labor
principles means. It could be that their meaning is the same as the meaning of the identically
worded principle in the 1998 ILO Declaration. Yet the failure to refer to the authoritative source
for determining the correct meaning of these principles is puzzling. For instance, there is little
amplification of what a term such as “freedom of association” means when it is applied in a
29
30
At its launch, the UN Global Compact consisted of nine principles. A tenth principle, concerning commitment to
combat corruption, was added on 24 June 2004.
http://www.unglobalcompact.org/aboutthegc/thetenprinciples/index.html.
For instance, Principle 1 in its entirety states: “Businesses should support and respect the protection of
internationally proclaimed human rights.” http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/
31
If one clicks on the tab “Labour” on the webpage that lists the principles, one is taken to a page that gives more
information under the heading “The Origin of the Labour Principles.”
http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/labour.html
32
Id.
33
The UN Global Compact is thoroughly modern in its approach to information dissemination. It makes excellent
use of the internet, and its website is well laid out and easy to navigate. Everything related to the Global
Compact is explained on the web. Various documents are available as pdf files available to be downloaded.
http://www.unglobalcompact.org All relevant materials appear to be on the website. Printed materials add little,
although Executive Director Georg Kell has written articles and books discussing the achievements of the Global
Compact.
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workplace setting, and the description given is somewhat confusing.34 The information given
with regard to child labor is somewhat more detailed, and the relevant ILO conventions are
mentioned, but the major problem of children working in a family enterprise is avoided.35
Likewise, it is unclear what status should be accorded these four labor principles. They are not
labeled “fundamental” principles. Using the ILO typology, these four principles embody basic
human rights. Yet, the Global Compact never uses that term in relation to the labor principles.
Sometimes, as Kofi Annan himself did, they are referred to as “labor standards,” which in the
ILO typology is a different category not rising to the level of human rights. The way in which
the Global Compact is presented might lead some readers to infer that the labor principles are not
human rights principles despite the fact that all but the ban on child labor are found in the
Universal Declaration of Human Rights.36
In June 2011, the United Nations Human Rights Council endorsed the Guiding Principles for the
Implementation of the UN "Protect, Respect and Remedy" Framework.37 The UN Guiding
Principles, provide an authoritative global standard for preventing and addressing the risk of
adverse impacts on human rights linked to business activity. The Guiding Principles clarify the
meaning of the corporate responsibility to respect human rights, which is also a key component
of Global Compact Principle 1, which calls on business to support and respect the protection of
internationally proclaimed human rights.
3.2.1. Coverage of the Global Compact
The UN Global Compact describes itself as “a strategic policy initiative for businesses that are
committed to aligning their operations and strategies with ten universally accepted principles in
the areas of human rights, labour, environment and anti-corruption.”38 It also describes itself as
34
Regarding principle 3, the website states: “The freedom to associate involves employers, unions and workers
representatives freely discussing issues at work in order to reach agreements that are jointly acceptable. These
freedoms also allow for industrial action to be taken by workers (and organizations) in defense of their economic
and social interests.” http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle3.html
35
http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle3.html. Convention No. 138,
Minimum Age for Entry into Employment (1973) is complex. To determine if a person is a child laborer, one
must consider the age of the person, the type of work being done, the amount of time being spent on the work, the
interplay between hours of work and school term time, and the stage of development of the economy.
36
The Universal Declaration of Human Rights was adopted on 10 Dec 1948. Articles 20 and 23(4) refer to freedom
of association; Articles 4 and 23 relate to slavery and forced labor; and Articles 7 and 23(2) relate to
nondiscrimination. There is no article that refers to child labor, although article 26 discusses a person’s right to
education. http://www.un.org/en/documents/udhr/
37
United Nations, Human Rights Council, Seventeenth session, Agenda item 3, Promotion and protection of all
human rights, civil, political, economic, social and cultural rights, including the right to development, Adoption of
Resolution, 17/4 Human rights and transnational corporations and other business enterprises. 16 June 2011.
A/HRC/RES/17/4. http://www.unglobalcompact.org/docs/issues_doc/human_rights/A.HRC.17.RES.17.4.pdf
38
http://www.unglobalcompact.org/AboutTheGC/index.html
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“a unique strategic platform for participants to advance their commitments to sustainability and
corporate citizenship.”39 When discussing how to participate, the Global Compact calls itself a
“platform for business and non-business entities to proactively network and engage in areas of
human rights, labour, environment, anti-corruption and contributing to UN goals.”40
The UN Global Compact has no mandatory coverage. By its very nature, it is a voluntary
partnership between UN agencies and businesses. Essentially it is a means whereby businesses
can publicly endorse ten universally accepted principles and then can seek to conduct their
business activities in a manner that is in alignment with these principles.
3.2.2. The UN Global Compact and Reporting
The Global Compact Office emphasizes that the UNGC is not legally binding, and that it does
not in any way monitor the activities of signatory companies to determine if they are acting in
accordance with the ten principles. Rather than establish a monitoring or supervisory function,
the UNGC opted for a policy of self-reporting. The device for so doing is called the
Communication on Progress, which a company is asked to post annually on the UNGC’s
website. Although the Global Compact Office does not review a participating company’s
Communication on Progress to determine if the company is aligning its activities in line with the
principles, it does view the requirement of an annual posting seriously to the extent that failure to
post the reports can result in expulsion (Rasche and Kell, 2010). After a substantial period
when the Global Compact Office attempted to persuade participating companies to report,
expulsions did occur. In February 2013, the Global Compact Office reported that since 2005 it
has expelled a total of 4,101 companies for repeated failure to report,41 and that 1,570 companies
were at the non-communicating participant stage. This indicates that a substantial percentage of
companies who signed on to the UNGC failed even to file a report.
3.3 ILO and UN Global Compact Hierarchy on Labor
In 1998, the ILO adopted its Declaration of Fundamental Principles and Right at Work after its
tripartite constituents engaged in a significant period of debate . The motivation for the UN in
1999 to appeal directly to companies to embrace human rights is unclear.
The ILO is unique among UN agencies in that it is a tripartite organization. When voting at the
annual Conference, for each Member State there are government, employers’ and workers’
39
http://www.unglobalcompact.org/HowToParticipate/Business_Participation/index.html
40
http://www.unglobalcompact.org/HowToParticipate/index.html
41
From the information given on the UNGC website, it is not possible to calculate how many companies in total
have joined since 2000, and which companies joined in a given year. As such it is impossible to calculate what
percentage have been expelled.
- 12 -
representatives.42 The architect of the ILO’s structure, Edward Phelan, deliberately created an
important role for employers’ and workers’ representatives because he believed that it would be
impossible for workplace matters to be fully understood and their interests to be represented fully
by government representatives alone and because their cooperation in implementation of
conventions would be essential. Thus, although conventions are ratified by Member States and
usually are phrased such that obligations are placed on the ratifying Member State to apply the
convention’s guarantees, it is expected that governments will work with employers’ and
workers’ representatives to ensure effective application. To encourage this, it is not uncommon
for some conventions to impose a requirement that the government engage in tripartite
consultation with employers’ and workers’ representatives. In light of the voting structure of the
International Labour Conference, it is evident that the 1998 ILO Declaration could never have
been adopted without significant employer support.43
The UN Global Compact website, in discussing the origin of the labor principles, refers to the
1998 ILO Declaration and explains briefly what the International Labour Conference is, and then
lists the four principles. It then makes a curious statement: “The aim of the ILO is to harness the
support of the business community for these principles through the Global Compact.”44
Considering that the ILO Declaration was adopted two years before the Global Compact and the
that since 1919 the ILO’s tripartite structure has demanded involvement with companies through
their role as employers, this Global Compact statement seems almost perverse.
The ILO has had modest involvement with the UN Global Compact. For instance, the ILO
participated in a Global Compact Labour Working Group designed to set forth in simple,
straightforward language what the labour principles mean. In 2008 the ILO did publish the
product of this working group, a 49-page guide for businesses discussing the meaning of the
labour principles of the UN Global Compact.45
Despite the minimal contact between the ILO and the Global Compact Office, the UN Global
Compact does accept the fundamental principles set by the ILO. Moreover, notwithstanding the
42
The tripartite structure runs throughout the Organization. At the annual Conference, a government is allocated
two votes, and the employers’ and workers’ representatives each have one vote. The voting allocation 1-1-1 in
committees is 1-1-1. This relates back to the design put forward at the time of the establishment of the ILO. The
voting allocation was changed for the Conference, to give governments more power, but no change was made to
the committees.
43
For a proposed Convention to be adopted, it must be approved by a two-thirds majority. Although there is no
stated majority for a Declaration, it has been assumed that near unanimity is required as a political matter. 18 June
1998, ILC 86th Session. http://www.ilo.org/ilc/ILCSessions/86thSession/lang--en/index.htm
44
http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/labour.html
45
The Labor Principles of the United Nations Global Compact: A Guide for Business (ILO, Geneva, 2008).
http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/--multi/documents/instructionalmaterial/wcms_101246.pdf
This document is listed as a resource on the UN Global
Compact website, and can be downloaded.
http://www.unglobalcompact.org/AboutTheGC/tools_resources/labour.html
- 13 -
lack of specificity about the meaning of these four principles, there is nothing to suggest that the
UN Global Compact itself defines these rights.
3.4 The Ruggie Principles: the Corporate Responsibility to Respect Human Rights
Aside from the UN Global Compact, an initiative of the Secretary-General, the debate over the
responsibility of business with regard to human rights continued at the UN throughout the 1990s,
especially at what was then called the Commission on Human Rights. In 2005, the Commission
placed a mandate on the Special Representative of the Secretary-General “on the issue of human
rights and transational corporations and other business enterprises.” Professor John Ruggie was
given this mandate and worked until 2011, when he issued a final report and made his proposal
for “Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework.”46 The extended period of discussion reflects the
“deeply divisive debate” that occurred between business enterprises and human rights advocacy
groups,47 regarding the nature and extent of the responsibility of businesses to observed human
rights.48
Using the “protect, respect, remedy” framework, Part II of the Guiding Principles focuses on the
“corporate responsibility to respect human rights” and lists five foundational principles, the first
of which declares “Business enterprises should respect human rights.”49 Nowhere in the Guiding
Principles but here is there any mention of the content of human rights with reference to a
benchmark document. In Part II, paragraph 12, it states:
The responsibility of business enterprises to respect human rights refers to internationally
recognized human rights – understood, at a minimum, as those expressed in the
International Bill of Human Rights and the principles concerning fundamental rights set
out in the International Labour Organization’s Declaration on Fundamental Principles
and Rights at Work.
The commentary on this foundational principle specifically mentions the eight core
conventions set out in the ILO’s Declaration on Fundamental Principles and Rights at
Work. Thus, for the first time the UN expressly linked the concept of business
responsibility to respect human rights with the rights enumerated in the eight core
conventions of the ILO.
46
United Nations, Human Rights Council, Seventeenth session, Agenda item 3: Report of the Special
Representative of the Secretary-General on the issue of human rights and transnational corporations and other
business enterprises, John Ruggie. A/HRC/17/31 The Guiding Principles are found in the Annex to this report,
pages 6 -27. Accessible at http://www.ohchr.org/Documents/Issues/Business/A-HRC-17-31_AEV.pdf
47
Id., page 3.
Mantouvalou, supra n.12 , highlights the widespread misconception that human rights only impose duties on the state and
speculates that this is so because international human rights law was first developed as a bulwark against totalitarian regimes.
49 Id., page 13.
48
- 14 -
4
Company Initiatives regarding Human Rights
The mode of supranational labour standards regulation traditionally taken in the post-World War
II era depends on a supranational organization adopting a legal or quasi-legal statement of the
right, with some form of supervision, monitoring, or complaint-based review as a method of
enforcement. This is a regulatory orientation. In contrast, the UN Global Compact adopts a
cooperative orientation, which depends on the willingness of companies to submit to some
degree of scrutiny of their actions. Since the early 1990s, two other approaches have emerged,
both of which involve companies voluntarily agreeing to adhere to certain norms of corporate
conduct. The orientation of CSR is that each, individual company makes its judgments on what
constitutes socially responsible behavior.
4.1. Voluntary Inspection and Reporting
One recent innovation involves certification initiatives, with the goal being transparency and
communication. With such initiatives, the driving motivation is that companies should report to
shareholders and other stakeholders on their activities of a non-financial nature. The best known
may be Social Accountability International which in 1997 created SA8000, an international,
standardized code of conduct50 relating to working conditions based on the principles found in
ILO and UN conventions. SAI describes itself as “a non-governmental, multi-stakeholder
organization whose mission is to advance the human rights of workers around the world” and
adds that it “partners to advance the human rights of workers and to eliminate sweatshops by
promoting ethical working conditions, labour rights, corporate social responsibility and social
dialogue.” As with most certification initiatives, SAI takes a non-legal, non-regulatory
approach; rather, it adopts a management orientation. SAI says it seeks to operationalize worker
rights by “building local capacity and developing systems of accountability through socially
responsible standards” and by “promoting social dialogue as a foundation for sustainable
change.” In any certification initiative, a primary activity is accreditation which means that
persons must be trained to engage in the certification process.51 In addition, there must be an
audit process for periodically reviewing the company’s continuing adherence to the prescribed
standard.
Another recent development has been the appearance of reporting initiatives, with one of the best
known the Global Reporting Initiative which began in 1997. A reporting initiative must, by its
nature, stipulate the subject matter to be reported on, and typically gives guidance on how to
report. An example is the Global Reporting Initiative which considers its Sustainability
Reporting Guidelines the “cornerstone of GRI”s Reporting Framework.” A reporting initiative
does not necessarily require standardization or certification. However, a lack of somewhat
specific standards undermines the usefulness of the reports submitted since the reporting
50
SA8000 contains eight core elements including health and safety, working hours, child labor, forced labor,
discrimination, freedom of association and collective bargaining, wages, and discipline. http://www.saintl.org/index.cfm?fuseaction=Page.viewPage&pageId=472
51
Many unions and NGOs criticize social audits on the grounds that the auditors do not detect safety and health
hazards, or violations of workers’ fundamental human rights. This article is limited to discussing what a worker
right means, and does not discuss how social auditing firms ascertain whether the right is being observed.
- 15 -
companies’ conduct cannot be measured against a benchmark, nor can they be compared to each
other.
4.2 Company Codes of Conduct
Numerous companies have issues corporate codes of conduct over the past twenty years. The
intended audience is often not specified. When a corporate code of conduct is posted on the
internet, one assumes it is directed at investors and consumers. Some companies either have
separate codes of conduct for employees and suppliers, or they address parts of the overall code
to employees and suppliers. Although nearly all codes of conduct cover the four fundamental
principles listed in the 1998 ILO Declaration, some do so explicitly while others use similar
language. Moreover, the degree of aspiration ranges from adherence to the ILO conventions to
merely support for the general principle.52 If they mention any form of enforcement, codes of
conduct typically state that the company may take action; e.g., disciplinary action against an
employee or de-listing of a supplier.
A public relations tone pervades many codes of conduct, inspiring skepticism in some quarters as
to the seriousness of the company’s commitment to human rights. It has been asserted that codes
of conduct are motivated by a company’s need to preserve or legitimize a reputable public
image, especially if a given brand is heavily marketed to consumers53 It has been noted,
however, that to some extent companies have been hoist on their own petard, since social
activitists have used corporate codes as the basis for corporate shaming and even as the basis for
legal action.54
There are critics of the view that voluntary self-policing can achieve meaningful human rights
observance by companies. Guy Ryder,55 formerly head of the International Trade Union
Confederation, has noted that trade unions were not involved with the UN Global Compact in its
first years, an anomalous fact in light of its four labour clauses, and the fact that trade unions are
not simply part of civil society but also part of industry.56 Ryder considers “corporate social
responsibility” a limited concept and one that in practice is usually paternalistic. He observes
that corporate social responsibility differs greatly from a concept of “the social responsibilities of
52
James J. Brudney, “Envisioning Enforcement of Freedom of Association Standards in Corporate Codes: A
Journey for Sinbad or Sisyphus?”, Comparative Labor Law & Policy Journal, 33:4, (Summer 2012) at 559.
53
Janelle Diller, “A social conscience in the global marketplace? Labour dimensions of codes of conduct, social
labeling and investor initiatives,” International Labour Review, Vol. 138, No. 2. (1999) pp. 99 – 129.
54
Guy Mundlak and Issi Rosen-Zvi, “Signaling Virtue? A Comparison of Corporate Codes in the Fields of Labor
and Environment,” Theoretical Inquiries in Law pp. 604 – 663, at 612.
55
Ryder was elected Director-General of the ILO in June 2012.
Guy Ryder, “The promise of the United Nations Global Compact: a trade union perspective on labour
principles.” Chapter 3 in Andreas Rasche and Georg Kell, eds. The United Nations Global Compact:
Achievements, Trends and Challenges. Cambridge University Press (2010). Pages 49-50.
56
- 16 -
business.” Ryder defines this concept as the “set of widely accepted expectations on how
business should behave.”57 Ryder believes society should place social responsibilities on
business, and decries the view of corporate social responsibility often held by businesses that it is
only voluntary and that it goes beyond legal obligations. He asserts that in most instances
corporate social responsibility is paternalistic, with companies taking the position that they
unilaterally can decide what is best for workers. He argues that this is inconsistent with the right
of workers to organize and bargain collectively. Ryder takes the position that the human right of
freedom of association and collective bargaining deems workers as being capable of recognizing
and deciding how to advance their own interests.
There are also critics of the view that voluntary self-policing can achieve meaningful human
rights observance by companies based on pragmatic considerations. In several studies of gobal
supply chains, Richrad Locke has found that despite substantial effort and investment,
monitoring alone produces only limited results.58 Locke argues that both critics and defenders of
private voluntary regulation share similar assumptioms about the power of multinational
companies in global supply chains, about the role of information (gleaned from factory audits)
plays in shaping the behavior of key actors in the production processw, and about the incentives
required to change behavior. He takes the position that the compliance-focused model of private
voluntary regulation produces at best limited improvements in working conditions and labor
reights, and that what is needed a more commitment-oriented, collaborative approach to
improving labor standards.59
As Wettstein has pointed out, the CSR movement led companies to draft codes of conduct, but
the proactive and voluntary focus of CSR contrasts with the binding character of human rights
obligations.60 It has been noted that for the most part, company codes of conduct have avoided
the terminology of human rights.61 Thus, it is difficult to gauge what companies mean when they
use phrases such as “freedom of association” in a code of conduct. Rarely is there any reference
to a third party document, such as an ILO convention. It may be that the company is seeking to
define the human right, or that it wishes to remain vague about the extent of its commitment, or it
may simply be that the company is unaware of an internationally agreed upon definition of what
the human right means.
57
Id.
58
Richard M. Locke, Fei Qin and Alberto Brause, “Does Monitoring Improve Labor Standards? Lessons from
Nike,” ILR Review, 61:1 (2007), 3-31.
59
Richard Locke, Matthew Amengual and Akshay Mangla, “Virtue out of Necessity? Compliance, Commitment,
and the Improvement of Labor Conditions in Global Supply Chains,” Politics & Society, 37:3 (2009), 319-351.
60
Florian Wettstein, “CSR and the Debate on Business and Human Rights: Bridging the Great Divide,” Business
Ethics Quarterly, 22:4 (October 2012), 739-770.
61
Thomas Campbell, “A Human Rights Approach to Developing Voluntary Codes of Conduct for Multinational
Corporations,” Business Ethics Quarterly, 16:2 (2006), 255-269, at 256.
- 17 -
After an extensive review,62 Witte notes that it is almost impossible to evaluate the impact of
company codes of conduct because there is no definition of what a code of conduct is and what it
should cover, there are few multi-stakeholder evaluations of impact, and there are no agreed up
standards of review. He places codes of conduct into context, as “just one way through which
core labor standards can be promoted,” but emphasizes that “by no means are they a substitute
for governmental or intergovernmental efforts in the field of social standards.”63
5
Regional Bodies and Human Rights
In most of the world, human rights issues are dealt with at the national level, or in an
international forum. Europe is the exception, because of the membership of countries in the
European Union, and because nearly all countries have ratified the European Convention of
Human Rights. As a result, those disappointed by the judgment of a national court have the
ability to appeal to a European Court.
The human right that has been contentious is freedom of association. Article 11, para. one of
the ECHR protects freedom of assembly and association, including the right persons to form and
join trade unions for the protection of their interests. The second paragraph of Article 11 of the
Convention sets out a number of permitted restrictions on this right, provided they are prescribed
by law and necessary in a democratic society for the protection of a range of interests, including
the "rights and freedoms of others." These “others” includes employers within its scope. When
considering the right of workers to exercise their right of association, it is obvious that Article 11
contemplates a balancing of interests, and that the right expressed in Article 11 is not unlimited.
Beginning in the 1970s, the European Court of Human Rights for some time interpreted Article
11 of the ECHR narrowly. In cases, the European Court of Human Rights considered whether
the conduct of the workers could be seen as an element of freedom of association, and then
whether the exercise of the right justified the burden on the rights of others. Since 2008, when
the Court handed down its judgment in Demir and Baykara64, a broader view is evident. In
Demir and Baykara, the Court recognized that the right to strike is one of the most important
ways by which unions can protect the occupational interests of their members and thus should be
viewed as an element of freedom of association. Most significantly, a year later in the Enerji
Yapi-Yol Sen decision,65 the Court took into account the fact that the right to strike is recognized
in other international instruments, and specifically examined the right to strike in the light of ILO
Convention No. 87 of the ILO. The European Court of Human Rights considered the
62
Jan Martin Witte. 2008. Realizing Core Labor Standards: The potential and limits of voluntary codes and
social clauses: A review of the literature. A report prepared by the Global Public Policy Institute on behalf of
the German Federal Ministry for Economic Cooperation and Development (BMZ). Accessible at
http://www.gppi.net/fileadmin/gppi/Studie-CLS-endfassung.pdf
63
Id. page 76.
64
Demir and Baykara v. Turkey [GC], no 34503/97, § § 140-146, ECHR 12 November 2008.
65
Enerji Yapi-Yol Sen v.Turkey, no. 68959/01, ECHR, 21 April 2009.
- 18 -
interpretation of the ILO supervisory bodies66 which indicated that although Convention No. 87
on its face is silent on the right to strike, the right to strike is an element of freedom of
association.
Recent decisions67 of the European Court of Justice, interpreting Article 43 of the Treaty of the
European Union, have resulted in the Court’s holding that industrial action which was unlawful
in the country where the workers engaged in the action because it unduly burdened the freedom
to establish services and the freedom of movement in the EU. The cases themselves are
complex. As a matter of European law, experts can disagree as to the correctness of these
judgments, and as to their real world significance.68 With respect to the topic of this paper, these
ECJ judgments are significant for another reason.
In reaching its decision in these cases, the ECJ did not expressly consider the views of other
authorities on the right of freedom of association. Most notably, it did not discuss whether the
ILO’s supervisory bodies would view the industrial action as a manifestation of the workers’
right of freedom of association. This is a notable silence in view of the fact that every member
state of the European Union is a member of the ILO and has ratified all eight fundamental
conventions. Whether this will change in future if the EU accedes to the European Convention
on Human Rights remains to be seen.69 One would assume that the ECJ would consider the
jurisprudence of the European Court of Human Rights on the fundamental rights of workers, and
at present, the latter court is considering the jurisprudence of the ILO supervisory bodies.
5.1 Conflict between Regional and ILO Jurisprudence
A recent Observation of the Committee of Experts involving the right to strike illustrates this
point that a right that is recognized at international level may be deemed unlawful at regional
level. In its 2010 Observation under Convention No.87 addressed to the United Kingdom,70 the
ILO’s Committee of Experts considered a particular incident that was alleged by a UK union to
infringe freedom of association. In this dispute, the employer, British Airways, had engaged in
66
The Court was referring to the Committee of Experts on the Application of Conventions and Recommendations
and to the Committee on Freedom of Association.
67
The two most often mentioned are the Viking and Laval cases. Viking Line v. International Transport Workers
Federation, Case C-438/05 (11 December 2007): Laval v. Svenska Byggnadsarbetareforbundet Case C-341/05
(18 December 2007).
See, e.g., Keith Ewing, “Decisions of the European Court of Justice: Implications for UK labour law,” Briefing
Paper, Institute of Employment Rights (January 2009). Accessible at
http://www.ier.org.uk/system/files/Decisions+of+the+ECJ+and+implications+for+UK+laws_0.pdf
69
Albertine Veldman. “The Protection of the Fundamental Right to Strike within the Context of the European
Internal Market: Implications of the Forthcoming Accession of the EU to the ECHR,” Utrecht Law Review,
9:1(January 2013) 104-117. Available at SSRN: http://ssrn.com/abstract=2212153
68
70
Report III (1A): Report of the Committee of Experts on the Application of Conventions and Recommendations,
International Labour Conference, 98th Session, ILO, Geneva, June 2010. pp. 208-209. Accessible at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_123424.pdf
(page 236 of the pdf version).
- 19 -
negotiations with the pilots’ union, BALPA, about the terms of employment of its members
working out of London Heathrow. The employer decided to establish a fully owned subsidiary
company and to have that company use an airport in another city where the company would be
able to fly customers direct, nonstop from Europe to North American locations. The union,
fearing the loss of work for its members at Heathrow to those pilots at the new location,
threatened to strike. The employer stated that if the union did so, it would seek to enjoin the
strike on the grounds that it would be successful in a lawsuit based on the law the UK court
would apply. The employer also stated that as any disruption at London Heathrow would cause
substantial economic loss, it would ask for damages of at least £100 million per day. Facing
bankruptcy if it went on strike for one day, the union decided not to strike. The Committee of
Experts was of the opinion that the United Kingdom had infringed freedom of association by
failing to provide sufficient legal protection for workers acting in defence of their occupational
interests.
What is interesting about this 2010 Observation is that an analysis of the dispute reveals that it
conforms to traditional patterns of industrial disputes. For instance, workers wanting to maintain
their wage rates and to retain the work at their location threatened to withhold their labour to
place economic pressure on the employer not to move the work to a location where labour would
be cheaper. This dispute also echoed a famous 1901 British case, Taff Vale, where the damages
assessed bankrupted the union and thus the judgment was seen as undermining freedom of
association. A 1906 statute effectively overturned the Taff Vale decision. But, in this dispute
there was a new factor. The location where the work would move was not within the home
country of those workers threatening to go on strike. Rather it was elsewhere in the European
Union and the British government responded that any adverse effect on the workers’ freedom of
association would be the result of EU law (in light of Viking and Laval) which it was obliged to
apply, as a result of its treaty obligations, and in particular EU law guaranteeing freedom of
establishment and freedom of services. This case squarely presents the problem that can arise
when there is no agreement on which body defines the meaning of human rights. One country is
signatory to several treaties and conventions emanating from different entities, and in a specific
case, these different entities view the meaning of the human right differently.
6
Agreeing on a Body Competent to Define Human Rights
Until recently, the ILO was generally viewed as the highest authority on the meaning of the
fundamental rights, as it was an international body and Member States agreed to accept
obligations by ratifying conventions. Even other international bodies have accorded the ILO an
authoritative voice. For instance, article 32 of the UN’s Convention on the Rights of the Child
(CRC) protects the child from economic exploitation, which to a large extent relates to child
labor. Swepston notes that the Committee on the Rights of the Child has taken the position that a
large body of international law already exsits on this subject, and that reference should be made
- 20 -
to the conventions adopted by the ILO on child labor to determine the precise extent of the
obligations under the CRC.71
In contrast, the jurisprudence of the Committee of Experts with regard to freedom of association
has not received similar deference. The ECJ judgments noted above have created uncertainty
about the meaning of this fundamental human right. Further uncertainty has arisen because of
the surprising and unexpected stance of the Employers within the ILO.
At the meeting of the tripartite Committee on the Application of Standards at the 2012
International Labour Conference (ILC), the chairperson of the ILO’s Committee of Experts
presented the 2012 General Survey of the Committee of Experts. The topic of the General
Survey was unusually broad -- all eight fundamental conventions. The section on Convention
No. 87, Freedom of Association, included a discussion of the right to strike.72 The organization
of the material on freedom of association and much of the text was assumed to be relatively
uncontroversial as it was taken from the last General Survey on this topic in 1994.73 There was,
however, one departure from usual practice. The Committee of Experts highlighted in two text
boxes the very different views of the Employers and the Workers regarding the right to strike.74
At the outset of the 2012 Committee on the Application of Standards (CAS) meeting at the ILC,
the vice chair of the Employers group expressed the Employers’ dissatisfaction with parts of the
General Survey calling it “highly contentious.” The Employers’ took the position that “neither
the preparatory work for Convention No. 87, nor an interpretation based on the Vienna
Convention on the Law of Treaties, offers a basis for developing, starting from the Convention,
principles regulating in detail the right to strike” and that “the right to strike has no legal basis in
the freedom of association Conventions.”75 This statement was made despite the fact that since
1952, its very first year of operation, the tripartite Governing Body Committee on Freedom of
Association has proceeded in the belief that a right to strike exists.
The Employers’ group took the position that a right to strike could not be read into Convention
No. 87 and, in a departure from past practice, refused merely to register an objection. Instead,
the Employers refused to examine any case of serious non-compliance by a ratifying member
state that involved Convention No. 87. The Workers’ group refused to accept this condition and,
thus the two groups were unable to draw up a list of cases to examine.76 As a result, for the first
71
Lee Swepston. 2012. A Commentary on the United Nations Convention on the Rights of the Child, Article 32:
Protection from Economic Exploitation. (Leiden and Boston: Martinus Nijhoff Publishers), page 1.
72
(ILO, 2012c, pp. 46 - 65).
73
Id.at 17 -100.
74
Id. at 47-48.
75
Id. at 47.
76
During the session of the CCAS, the Employers’ and Workers’ vice chairs agree on a list of about 25 cases to
examine. These are cases where there is extremely serious and/or persistent failure to apply a given convention.
The government is asked to explain what the situation is and why it has not corrected the problem.
- 21 -
time since 1927, the Committee on the Application of Standards examined no individual cases
during the 2012 Conference.
The position of the Employers Group was surprising. In the General Survey, the Committee of
Experts stated that in large part it derived its understanding of the right to strike from the
tripartite Committee on Freedom of Association of the Governing Body, expressed in over 2800
cases since 1952. The Employers also disagreed with this, instead asserting that the CFA
“creates non-binding recommendations on a case-by-case basis” not based on the freedom of
association Conventions.77 This is a curious view, for if one accepts their view, the thousands of
cases decided by the Committee on Freedom of Association over sixty years have produced no
coherent approach to the right of freedom of association that can be relied upon by other parts of
the ILO.
Conventions No. 87 and 98 give workers the right to organize and to defend their occupational
interests. The ability to do so usually rests upon their ability to apply economic pressure and
thus the right to strike and engage in other industrial action is integral to the right of freedom of
association. Despite this, the Employers took the position that the Committee of Experts can
express no “opinion” on this when examining whether a member state has respected its
obligations under Conventions No. 87 and 98. The Employers also asserted that since the
Conference had not agreed to a precise statement of the right to strike, the matter was left to
national law. In effect, then, the Employers argued that there was no internationally recognized
right to strike contained within a guarantee of freedom of association and a right to collective
bargaining.
The Employers Group strongly expressed position at the 2012 ILC may have been prompted by
the perceived need to send a message to an audience outside the ILO. The Employers appeared
to be targeting the ILO’s Committee of Experts for a reason. They complained that the General
Surveys are “seen as being the position of the Organization which they are not” and commented
that it would be “damaging” if the views of the Committee of Experts were taken as the views of
the ILO in other UN or international forums.78 In this regard, the Employers’ vice chair stated
that the Employers were aware that the fundamental ILO conventions are “embedded into” the
UN Global Compact, the UN Human Rights Council’s Ruggie framework, and other prominent
guidelines for multinational enterprises.79
7
The Need for an Internationally Agreed View of Human Rights
At the 2012 ILC meeting of the CAS, the Employers’ vice chair implied that other influential
actors in the human rights arena, which can bring pressure on employers to adhere to certain
77
Report of the Conference Committee on the Application of Standards. Extracts from the Record of the
Proceedings, International Labour Conference, 101st Session, Geneva, 2012. Doc. 37, 27/4.
78
Id.
79
Id.
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standards, were consulting the reports of the Committee of Experts on freedom of association
and collective bargaining and deeming these informative and authoritative statements on the
meaning and scope of these human rights. On this particular point, the Employers’ vice chiar
may well be correct.
To some, “human rights” is a label attached to concepts regarding just and moral conduct. In
international law, human rights are those listed in certain international covenants or conventions,
and a given human right has a specific meaning with obligations placed on governments to
ensure that the right is applied in law and practice. Drafting of such documents typically occurs
over long periods of time, as governments negotiate a text they find acceptable. Once adopted
by a body such as the United Nations or the ILO, the document is seen as proclaiming an
internationally recognized human right and as such, one which individuals can invoke and seek
legal redress if their human right is infringed. This view of human rights does not mesh easily
with the approach adopted by some companies that they can voluntarily decide whether to
assume the obligation of observing human rights and if so, to decide for themselves what exactly
the right means.
The CSR movement has been successful in influencing companies to understand that their duty
is not only to their shareholders, but also to their workers and the larger society. Those
companies who considered signing on to the UN Global Compact as simply another
manifestation of corporate social responsibility may now realize that they misconceived what the
UNGC is. The UNGC can be seen as complementary to longstanding ways of exhorting
employers to act in accordance with human rights standards, but its goal was to do more, to have
companies align their behavior with human rights standards, to be a learning platform and to
encourage continuous improvement in a company’s effort to respect human rights. The danger,
however, is that the UNGC will be interpreted by some as setting a low standard for what these
human rights mean, and that employer voluntary communications of progress are all that is
required. The Ruggie Principles indicate a desire to inject coherence in how parts of the UN
system define certain human rights, and in particular, that the ILO’s core conventions regarding
human rights at work must be respected.
The position that some companies appear to take, as evidenced by the position of the Employers
at the 2012 ILC, that each nation state can decide what the human right means, does not accord
with the prevailing legal view that internationally recognized human rights have specific
meanings that were agreed upon in an international body at the time of the adoption of the
relevant convention. The position that each nation state can decide what a human right means, if
accepted, would undermine the entire post-World War II notion of universal human rights. In
the area of workers’ fundamental rights, it would mean reverting to the state of affairs before
1919, when “recognition of the principle of freedom of association” was proclaimed as a
condition of employment urgently required in Part XIII of the Treaty of Versailles, which
established the ILO. Within the last ten years, the challenged to a seemingly established order
has become clear. There is an urgent need for governments, employers and workers to confirm
that internationally recognized human rights apply universally, and that disagreements as to their
meaning are decided at an international level.
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