New Forms of Global
Labor Governance or
the Best of All Possible
Worlds
Copyright © 2011
Marley S. Weiss
Can We Move From Universal Norms of Labor/Human
Rights to Universal Obligations and Enforcement
Machinery
 International human rights law, both civil and political, and
economic and social, is predicated on the understanding that
inherent in the human identity are certain moral entitlements that
should be given legal form.
 These norms are embodied in the Universal Declaration of Human
Rights.
 From the outset, however, whether these norms produce legal
obligations, binding upon nation-states, much less upon other
actors such as TNCs, has been contentious.
 The move from moral philosophy to functional implementation
mechanisms is precisely where we encounter great difficulty. By
preserving enforcement to sovereign nations, we retain a
membership (citizenship) based implementation and enforcement
scheme, for a universal or “all-affected” set of rights and
obligations.
Conventional Characterization of Global
Labor Governance as “Fragmented” –
Historical Image
 Idealized image of historical national labor governance regimes as
“unified” or “integrated”
 Etatist versions characterized primarily by governmental regulation
 Corporatist versions characterized by bi-partite (peak labor and
peak management) or tri-partite (labor-management-government)
consensus regulation of labor markets and/or sectoral terms and
conditions of work
 Mythical levels of employer compliance with labor norms
 Invisibility of non-standard workers and non-standard labor
relationships
 Labor markets as nearly entirely domestic; markets for goods and
services primarily domestic
International Level Labor Governance
– Historical Image
 International Labour Organization (ILO) as primary
international norm-setting organ
 Tri-partite structure, but nation-state dependent in all
aspects of the body; obligors and obligees, however, limited
to member nation-states
 U.N. Conventions (ICCPR, ICESCR and others) binding on
nation-state ratifiers
 Customary international law binding on all nation-states
 As to economic, social and cultural rights, nation-states
subject to duties “to respect, protect and fulfill.”
International Level Labor Governance
– Historical Image
 The obligation “to respect” means that the state itself
is prohibited from directly acting to violate or interfere
with these rights.
 The obligation “to protect” goes beyond refraining
from governmental action hostile to the rights in
question by requiring the government to prevent
violations by others. “To protect” means the state must
enact and effectively enforce domestic legislation
making these rights real in the labor market and
workplaces of the country.
International Level Labor Governance
– Historical Image
 “The obligation to fulfill requires states to take appropriate
legislative, administrative, budgetary, judicial and other
measures towards the full realization of such rights.”
 This duty goes beyond simple incorporation and
enforcement of the international norm within domestic law.
It entails recognition and progressive elimination of
impediments within other legal, social, and economic
structures to the full effectuation of the objective of the
international right.
 The presumed unit of analysis, however, remains the
internal structures and institutions of the nation-state as
obligor to the convention.
Globalization Problems
 Globalization stems from a combination of dramatically improved
information, telecommunications and transportation technologies
shrinking the effects of geographic space and legal changes
decreasing the impermeability of nation-state borders for purposes
of movement of goods, services and capital, while altering the
framing of limitations of movement of persons, particularly
workers.
 In part by design, the cumulative effect has been to decrease
power of national governments and institutions of governance over
businesses, both as employers and otherwise, and to weaken the
power of workers, individually and collectively, in comparison to
business.
 In addition, the scale of cross-border operations has vastly
increased, posing separate regulatory issues for a legal order
primarily based at the level of the nation-state.
Distinctive Labor Rights Structural Problem
in Globalization
 Labor and labor market-related migration
rights, as compared to other economic and
social rights (and civil and political rights),
pose distinctive structural problems in this
stylized description of the international legal
order.
 Each nation-state regulates terms of
employment, terms under which freedom of
association and collective bargaining rights
may be exercised, and rules for lawful labor
market participation status for immigrant
workers.
Distinctive Labor Rights Structural Problem
in Globalization (2)
 At the domestic level, the main obligor of these rules is
the employer, while the international norms, which the
national laws are to implement and effectuate, are
directed at the nation-state and not the employer.
 On the international plane, the party with standing to
enforce the international obligations against violation,
for the most part, is another nation-state that is party to
the instrument.
 However, the intended beneficiaries and the main
actors with a real stake in enforcement are the workers
and their trade union representatives, who are usually
subjects with enforcement rights under domestic law
but not international law.
Distinctive Labor Rights Structural Problem
in Globalization (3)
 Globalization means increased mobility of businesses and
workers‘ jobs, as well as goods and services, across
national borders, but divergent national labor law regimes
pose increasing barriers to effective implementation of the
international norms.
 These barriers remain even if both the sending and
receiving country, regarded in isolation, have enacted
domestic labor law regimes in full compliance with
international obligations.
 This is especially true of trade unions and other worker
interest representation organizations, embedded actors in
civil society as well as labor market economic
representation, with incompatible structures and traditions in
various countries.
Exclusivity and Government v. Networks
and Governance v. Fragmentation and
Pluralism at the Domestic Level
 At the domestic level, is the “new governance” really new? In what
respects have things changed and to what extent are they just
being re-labeled?
 Civil society and business actors partnering with formal structures
of government as a tradition, a deviation from tradition, a virtue, a
necessity, or a contingent consequence of choices
 Disciplinary divergences in the label “law”: Law as governmentcreated norms, by definition with exclusive authority to enact;
political science ambivalent as between government, governance,
networks, and combinations; sociology treating private norm
creation and customary norm creation as equivalent to
government norm-setting
 New governance theories’ tendency to erase “democracy” and
“power” from the discussion
The Highly-Fragmented U.S. Labor NormSetting and Enforcement System
 Even prior to the 1990s and this wave of globalization, the
operation of the U.S. system for legal norm-setting and
enforcement was highly fragmented, rather than the unitary,
idealized model.
 The common law in the U.S. governing tort and contract comes in
51 variations, one for each of the 50 states plus the District of
Columbia.
 Although some statutory areas are exclusively federal, some are
primarily or exclusively set in 51 divergent state models; others are
set at both levels, allowing for variations of claims, standards,
enforcement procedures, and remedies for violations at both state
and federal level.
 Private sector collective bargaining provides a unitary, single
channel, exclusivity-based method of norm-setting (subject to
federal and state minimum standards) and an internal enforcement
system.
The U.S. System in Operation in Labor Law
and Labor Relations – Operating in a SemiLawless Environment
 American labor unions for the past forty years have increasingly had to
operate within an industrial relations system formally providing rights to
organize and bargain collectively and imposing duties of recognition and good
faith collective bargaining on employers, but lacking effective procedures and
remedies to induce employer compliance.
 Unions use all sources of legal and economic leverage to extract recognition
and a collective agreement providing employees with decent wages, hours,
and working conditions. These include collective labor law mechanisms,
individual employment law rights and enforcement mechanisms both state and
federal, legal claims under other bodies of law, including corporate law,
environmental law, securities law, tort law, consumer boycott appeals, and
corporate social responsibility campaigns. Strategic thinking about how to
identify and combine sources of leverage is a part of most union campaigns,
whether organizing or collective bargaining.
 Individual employees are bound by exclusivity of union representation in
collective bargaining and CBA enforcement, but (so far) retain individual
enforcement rights over statutory claims such as minimum wage and overtime
and employment discrimination violations.
Adaptation of U.S.
Approaches
 Increasingly, trade unions in other, heretofore more stable
industrial relations systems are adapting some of these U.S.
approaches to their own national environment.
 In domestic organizing and bargaining campaigns, U.S. unions as
well as unions from other countries, are increasingly asserting
international labor rights, particularly as human rights, both for the
moral effect and to motivate a favorable interpretation of domestic
labor norms.
 At the international level, unions are utilizing the pluralism of the
international labor law order to select the most suitable among
alternative mechanisms to bring their claims before an
international audience. Although available remedies may matter,
usually the publicity effect of a legal ruling is the main objective.
The goal may be to produce change in government policy or
change in labor policies of a TNC, or a combination of the two.
The International Labor
“System” in the Aggregate
 ILO norms, especially those derived from the Declaration of Fundamental
Principles and Rights at Work, are implemented not only through the largely
soft enforcement mechanisms of ILO supervisory machinery,, applicable to
nation-states alone, but also through incorporation by reference into bilateral
and regional free trade agreement labor chapters, with somewhat harder
enforcement mechanisms against party nation-states as well as more direct
naming and shaming publicity effects upon systemic corporate lawbreakers.
In addition, they are increasingly implemented through incorporation into
binding or semi-binding corporate social responsibility codes of conduct,
sometimes subject to investment withdrawal sanction, international framework
agreements entered into with trade union confederations, and other highly
decentralized and pluralist measures which begin to make them directly
applicable against employers, albeit still producing no retrospective remedy for
employees. The aim of these measures is largely to alter governmental
behavior, hence corporate behavior, or to directly alter corporate behavior
prospectively.
 This is far from an integrated scheme; on the contrary, it is a pluralist and
alternatively utilizable non-system. That is both its strength and its weakness.
E Pluribus Unum or Vice
Versa
 The U.S. system is on the one hand, one of exclusive government control at
each level, and on the other hand, of radical pluralism in laws, fora, and
between state and federal levels, as well as through collective bargaining.
 The U.S. collective labor law system is one of exclusive bargaining agency,
with the union having the right to totally displace the individual in bargaining
over terms and conditions of employment, and subject to a duty of fair
representation, to have a broad range of authority of resolution of individual
claims arising under the collective agreement. Nevertheless, it stands
alongside the wildly plural individual employment rights system as well as the
totality of very plural broader legal system.
 Collectively represented workers are able to maximize their bargaining power
in an extremely hostile, almost unregulated environment through these
mechanisms, while unorganized workers have almost no ability to utilize the
system, and NGOs are able at best to vindicate the legal rights of workers
through litigation, but can neither bargain effectively for individual or systemic
terms, nor to pressure employers for systemic change.
Cosmopolitanism or Exclusivity – Worker
Representation
 Trade unions are able to effectively represent employees in the
U.S. precisely because they have an exclusive franchise, running
not only to their members but to all workers employed within the
bargaining unit the union represents based on majority status.
 They have considerable democratic legitimacy, and for the most
part are subject to democratic constraints in their policies. They
are further subject to democratic constraints in that many forms of
job actions require rank and file participation.
 They forge strong shared collective identities, based on mutual
trust, reciprocity and loyalty.
Cosmopolitanism or Exclusivity – Worker
Representation
 NGOs, by contrast, are elite-led, either non-membership or mass
membership organizations without much direct participation and
with little sense of identity.
 A non-exclusive organizing and bargaining system would either
have to be based on the functional equivalent, or would be far less
effective in producing sufficient collective worker power to
countervail that of most employers.
 Input and consultation means something very different than
bargaining from a relatively equal position. An employer may
consult with many, but in effect, unilaterally decide. It remains free
to chart its own course. Open representation schemes can afford
an opportunity for voice types of input, but not for serious
bargaining.
Cosmopolitanism or Exclusivity – Worker
Representation
 At the global level, trade unions are beginning to forge stronger,
and more permanent cross-border relationships while utilizing the
national and local level building blocks pre-existing within domestic
industrial relations systems. This is a vehicle for combining crossborder union power against cross-border employers without too
strongly modifying national systems of industrial relations.
International framework agreements and similar devices are
nascent steps towards true trans-national collective bargaining
without a transnational legal regime specifying an industrial
relations model. It is a solution for a pluralist world.
 A key limit on such arrangements is the need to grow into
increased shared identity, reciprocity and trust. A universal
obligation to all workers or even all union workers would be
unworkable both in terms of the sentiments of the workers and in
terms of the demands upon them.
Cosmopolitanism or Exclusivity –
Government or Governance
 Governments that provide too much input to nongovernmental sources risk jeopardizing functional
democracy.
 Delegating decision-making to private actors in an unequal
power environment strongly risks delegating unbridled
power to those already wealthy and powerful, particularly big
business interests.
 Corporatist arrangements are predicated on “functional
democracy,” or a democracy which takes into account
separate interests of labor and capital in areas of their
mutual social and economic concern, and rather than being
an exception to this rule, is a special case which tends to
prove it.
Cosmopolitanism or Exclusivity –
Government or Governance
 Shared identity and boundaries provide a basis in which to make political
decisions; it legitimates those decisions as democratic and allows
sufficient permanence to build a political community in which deliberative
aspects of democracy can take place.
 At the global level, international institutions and conventions remain plural,
but largely controlled by exclusivity aspects of national sovereignty.
 The EU illustrates the dangers of muddied thinking about new governance
and indirect mechanisms distorting or eliminating accountability for
citizens, seemingly technocratic methods yielding domination by corporate
and financial interests without visible fingerprints. This breeds dangerous
levels of disillusionment with the hollowed-out façade of democracy which
has, historically, led to authoritarianism, xenophobia, racism, nationalist
extremism, and other forms of extremism.
Pluralism Side By Side with Exclusivity?
Can You Get There From Here?
 Universal human rights notions are based on the moral
cosmopolitan idea of a core of shared entitlements
necessary for human dignity.
 The idea that these norms can be achieved through
non-nation-state-based legal mechanisms, however, is
both deluded and likely to produce perverse
consequences.
 Trans-border and multinational labor actors can
function in coordinated ways, but must preserve their
local and national democratic bases to ensure
accountability and representativity to the workers.