International Labor Rights

[*]

by

Angela B. Cornell, Clinical Professor of Law, Cornell Law School

Director, Cornell Labor Law Clinic[1]

abc49@cornell.edu

Overview

The rights of workers in the global economy are a fundamental pillar in the development of business and human rights as a field of practice and study. This teaching note is intended to help teachers provide students an overview and introduction to the sources of international labor law. The note highlights key provisions of both public and private international law that address labor rights.

International Labor Law

International labor rights are loosely regulated by an amalgam of public international and private law, binding and soft law norms, as well as a range of public-private global initiatives and transnational efforts.[2] 

Recognized as both political and economic, labor rights hold the special status of being included in each of the core international instruments that comprise the International Bill of Human Rights:  The Universal Declaration of Human Rights (UDHR),[3] the International Covenant on Civil and Political Rights (ICCPR),[4] and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).[5]  Both United Nations Covenants are binding when ratified by states. All three instruments, UDHR, ICCPR and ICESCR, recognize the significance of freedom of association and the right to form and join trade unions.[6]

Regional human rights instruments in the Americas, Europe and Africa also recognize freedom of association and trade union rights.[7]  There is also a growing body of jurisprudence on labor rights from regional human rights courts.

Private agreements can also advance labor rights and many include dispute resolution mechanisms. These include collective bargaining agreements, multistakeholder agreements, codes of conduct that are incorporated into enforceable contracts, and global framework agreements.

Few international human rights norms have enjoyed such widespread and historic recognition. Since 1919 when the International Labor Organization (ILO)[8] was founded, labor rights have been identified as fundamental for a just society. The ILO remains the most significant body in the area of international human rights and standards.  It is the principal entity to deal with human rights in the workplace.

Public International Law

International Labor Organization

Celebrating its centennial in 2019, the ILO is the United Nations-related body dedicated to the establishment and overseeing of international labor standards. The ILO has a tripartite governing structure comprised of governments, workers and employers.   It is the primary international body to address workplace rights in the global economy and has nearly universal membership of countries around the globe.[9] In 1944, the ILO established the fundamental principles that “labor is not a commodity” and that “freedom of expression and association are essential to sustained progress.” [10]

The ILO has developed close to 200 conventions that set international labor standards, and monitors state compliance with ratified conventions.  The supervisory process includes the Committee of Experts on the Application of Conventions and Recommendations (CEACR), and the Committee on the Application of Standards, which oversee compliance with obligations under the Constitution or labor standards. Member states submit reports on measures taken to implement ratified conventions, which are reviewed by CEACR.[11] Additional measures are pursued with cases of noncompliance. Complaints alleging violations of Convention 87 can be submitted to the Committee on Freedom of Association (CFA), even if the state has not ratified the Convention.[12] The CFA examines cases related to trade union rights, which can relate to collective bargaining, the right to strike or related legislation.  The Committee’s action has lead the resolution of many issues, but some member states consistently fail to remedy violations.

Topics addressed in ILO Conventions include minimum wages, hours of work, occupation safety and health as well as broader policies like social security. Two of the most important conventions are Conventions 87, Freedom of Association and Protection of the Right to Organize, and 98, Right to Organize and Collective Bargaining.  These Conventions have constitutional status, requiring compliance by member states, regardless of ratification.

  • Freedom of Association, Conventions 87 and 98

 Convention 87 provides that “[w]orkers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing.”[13]  The right to strike is considered to be part of this convention and transgressions have been denounced by the CEACR since 1959 and by the CFA since 1952.[14] 

            Convention 98 promotes collective bargaining and protection from anti-union discrimination and interference.   

  • Declaration of Fundamental Principles and Rights at Work (1998)

            The ILO’s Declaration on Fundamental Principles and Rights at Work[15] represents the international consensus on the very core of workplace rights from eight ILO Conventions:

1) freedom of association and the effective recognition of the right to collective bargaining (Conventions 87 and 98);

2) the elimination of all forms of forced or compulsory labor (Conventions 29 and 105);

3) the effective elimination of child labor (Conventions 138 and 182); and

4) the elimination of discrimination in respect to employment and occupation (Conventions 100 and 111).

           All members of the ILO have an obligation to “respect, to promote, and to realize” these fundamental rights—even if they have not ratified the Conventions. The significance and importance of the Declaration is seen in the extensive diffusion and incorporation into numerous public and private instruments, including the UN Global Compact, UN Guiding Principles on Business and Human Rights, OECD Guidelines for Multinational Enterprises, bilateral and multilateral trade agreements, and global framework agreements, among others.

The Universal Declaration of Human Rights (1948)

The Universal Declaration of Human Rights states that “everyone has the right to freedom of peaceful assembly and association,” (Art. 20(1)) and “everyone has the right to form and join trade unions for the protection of his interests.” (Art. 23(4))[16]

International Covenant on Civil and Political Rights (1966)

The International Covenant on Civil and Political Rights recognizes that “Everyone 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. (Art. 22)[17]

International Covenant on Economic, Social and Cultural Rights (1966)

The International Covenant on Economic, Social and Cultural Rights requires governments to ensure:  “the right of everyone to form trade unions and join the trade union of his choice,” the right of unions to function freely and the right to strike. (Art. 8)[18] 

Regional Human Rights Instruments

  • Inter-American Human Rights System

The American Convention of Human Rights states:  “Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, culture or other purposes.”[19]  Trade union rights are more explicitly advanced in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, the “Protocol of San Salvador,”[20] which recognizes “the rights of workers to organize trade unions and to join the trade union of their choice for the purpose of protecting and promoting their interests.” The right of trade unions to form national federations, and confederations, to function freely without governmental interference, and the right to strike are also protected in the Protocol.

  • European Human Rights System

European Convention for the Protection of Human Rights and Fundamental Freedoms states:  “Everyone has the right to freedom of peaceful assembly and freedom of association with others for the protection of his interests.”[21]  The European Social Charter likewise recognizes the right to organize, bargaining collectively, and engage in collective action.[22]

  • African Human Rights System

The African Charter on Human and Peoples Rights provides that “Every individual shall have a right to free association . . .”[23]

Trade Agreements

Fundamental labor rights have gained considerable traction in the new generation of trade agreements, which typically include a labor chapter with a dispute resolution mechanism. The Jordan Free Trade Agreement[24] with the U.S. in 2000 was the first to include a labor chapter as an integral part of the text and many trade agreements have included such a chapter since that time.[25]  While the inclusion of these rights into the body of the trade agreements has reinforced international labor standards, some commentators argue that there have been few gains in terms of remedies in either bilateral or multilateral trade agreements for labor violations using the dispute resolution mechanism[ ]  contained in these agreements.[26]

Private International Law

Global Collective Bargaining Agreements

Collective bargaining agreements that transcend national borders are rare, but one example applies in the maritime industry between the International Transport Workers Federation and the International Maritime Employers’ Committee. Another, more limited, global agreement is between the United Steelworkers of America and ArcelorMittal (along with the European Metalworkers Federation and the International Metalworkers Federation), which addresses workplace health and safety. These agreements create enforceable workplace rights.

Global Framework Agreements

Global Framework Agreements[27] are the bilateral contracts negotiated between a global union federation and transnational corporations that relate to working conditions at its facilities throughout the world and frequently apply down the supply chain.[28] They are rights agreements that incorporate ILO core conventions, but do not generally include wages and terms and conditions of employment like a collective bargaining agreement. Thus far these agreements have not been enforceable legally, but typically have a dialogue-based dispute resolution mechanism. 

Multistakeholder Agreements

Multistakeholder Agreements in this context are typically between multinational corporations, unions and non-profit organizations.  These agreements are frequently tied to a national or multinational campaign highlighting labor violations and often have a binding arbitration clause. The Coalition of Immokalee Workers and the Campaign for Fair Food serve as good examples of  successful campaigns and agreements that have yielded tangible results.[29] The Russell Campaign involving universities across the United States cancelling their licensing agreements with the clothing manufacturer due to labor violations resulted in another successful and binding agreement that was tied to codes of conduct.

Codes of Conduct

Some public and private entities have codes of conduct that require compliance with labor rights for licensees or vendors. These codes of conduct can create a binding obligation for some companies when they are integrated into contracts and there have been stiff penalties for violations. Universities often use these to ensure that companies using their logos are not committing labor violations.[30]

Public-Private Initiatives

OECD

The Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises[31] encourage corporations to comply with fundamental labor rights, including recognizing trade union rights and collective bargaining.  The Guidelines establish a complaint-based dispute resolution system using national contract points in OECD countries. (See OECD National Contact Point Complaints)

The UN Global Compact is another example of a public private initiative that incorporates fundamental labor rights.[32]

Teaching Approaches

In Business and Human Rights course, material on international labor rights can be used as an introductory lesson or a module. International labor rights can also be introduced through specific cases involving efforts to ensure minimum standards in global supply chains.

One approach to facilitate engagement is to have students introduce a topic that they select from a short list of options. Sample topics for business and policy students could include: Global Frameworks Agreements; the OECD process involving a labor violation; the Inter-American Court Advisory Opinion OC/22/16 involving the standing of unions and corporations before the Court,[33] or the Russell Athletic case involving codes of conduct.[34]  Using the U.N. Special Rapporteur Maini Kiai’s 2016 Report on the “Rights of Freedom of Peaceful Assembly and  Association” would also provide rich material to facilitate student discussions about the most pressing labor issues in the world today and the broader implications of workers’ rights in the global community.[35]

Topics for law students to introduce for a class discussion of issues could include: an Inter-American Court decision involving freedom of association, like Ricardo Baena et al., v. Panama (February 2, 2001) or Huilca-Tecse v. Peru (March 3, 2005); or the ILO’s decision in Hoffman Plastic Compounds, involving an undocumented worker fired for organizing a union.[36]  Depending on the size of the group, the instructor can limit student presentation time to 10-12 minutes and then supplement their presentations with material that is not covered.

Another approach is to cover 1 or 2 cases arising in different fora, and divide up arguments and issues among groups of students.

Learning Objectives may include:

  • Becoming familiar with the principal sources of international labor norms.
  • Understanding the significance of Freedom of Association in the international human rights framework.
  • Understanding the role of business in compliance with Freedom of Association.
  • Understanding different mechanisms to pursue redress for labor rights violations.
  • Assessing the strengths and weaknesses of different mechanisms used to advance international labor law.

Key Questions

General

  • What is the significance of freedom of association to the global community?
  • What specific rights form part of freedom of association in this context?
  • How has globalization shifted the nature of compliance with labor norms?
  • What does corporate responsibility to respect human rights mean in the labor context?
  • What mechanisms work best for holding corporations accountable for violations of international labor norms?
  • How are labor standards different from other human rights?

For business students

  • How can corporations fulfill their responsibility to avoid violations of labor rights as envisioned in the second pillar of the UN Guiding Principles?
  • What incentives exist for corporations to comply with international labor rights?
  • Is it reasonable to hold corporations accountable for violations down the supply chain? Why or why not?
  • What can transnational corporations do to exercise due diligence to avoid violating fundamental labor rights at contractor facilities?

For law students

  • What are the sources of international labor rights?
  • What are the “core” labor standards under international law?
  • Does international labor law and corresponding enforcement mechanisms have sufficient teeth to provide meaningful remedies for violations of fundamental rights?
  • What is the relationship between public and private law mechanisms to enforce labor standards? 
  • Many international labor norms rely on “soft law” instruments and mechanisms. What  are the strengths and weaknesses of “soft law”?
  • Does the state have a duty to protect against human rights violations committed by corporate actors?
  • Should corporations assume a greater role for complying with international labor law when domestic law is weak or not enforced?

For policy students

  • What is the significance of collective rights?
  • How can government actors collaborate with businesses and unions to advance compliance with international labor norms?
  • Should the state be responsible under international law for violations committed by corporations?

Teaching Resources


Notes

[*] This teaching note may be cited as:

Angela B. Cornell, “Teaching Note:  International Labor Rights,” in Teaching Business and Human Rights Handbook (Teaching Business and Human Rights Forum, 2019), https://teachbhr.org/resources/teaching-bhr-handbook/teaching-notes/international-labor-rights/.

[1] The Labor Law Clinic at Cornell Law School represents clients with domestic and international labor law cases and projects.  The focus of the clinic is Freedom of Association and workers’ collective rights. Professor Cornell also teaches Labor Law, Practice and Policy, International Labor Law, and an abbreviated Business and Human Rights course.

[2] See, James Atleson, et al., International Labor Law (2008).

[3] Universal Declaration of Human Rights, G.A. Res.217A (III, U.N. GAOR, 3d Sess., pt. 1, at 71, U.N. Doc. A/810 (1948)(art. 20(1); art. 23 (4)).

[4] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, Article 22.

[5] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 993 U.N.T.S 3, Article 8.

[6] For a helpful framing of labor rights in the broader human rights framework, see, James A. Gross, ed., Workers’ Rights as Human Rights (2003); John Gerald Ruggie, Just Business:  Multinational Corporations and Human Rights (2013).

[7] Franz Christian Ebert & Martin Oelz, “Bridging the gap between labour rights and human rights: The role of ILO law in regional human rights courts” (ILO, 2012).

[8] Freedom of Association and Protection of the Right to Organise Convention art. 2, July 9, 1948, available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312232:NO

[9] 187 countries are now members of the ILO.

[10] Philadelphia Declaration of 1944, incorporated into the ILO Constitution.

[11] ILO, THE COMMITTEE ON THE APPLICATION OF STANDARDS OF THE INTERNATIONAL LABOUR CONFERENCE: A DYNAMIC AND IMPACT BUILT ON DECADES OF DIALOGUE AND PERSUASION (2011); https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—normes/documents/publication/wcms_154192.pdf

[12] Freedom of Association, Compilation of decisions of the Committee on Freedom of Association, International Labor Office (Geneva, ILO, 6h ed., 2018).

[13]Freedom of Association and Protection of the Right to Organise Convention, art. 2, July 9, 1948, available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312232:NO.

[14]  Bernard Gernignon, Alberto Odero and Horacio Guido, “ILO Principles Concerning the Right to Strike,” (ILO-Geneva, 1998), available at:  https://www.ilo.org/wcmsp5/groups/public/@ed_norm/@normes/documents/publication/wcms_087987.pdf.

[15]ILO, https://www.ilo.org/global/lang–en/index.htm (last visited Apr. 30, 2019).

[16] Universal Declaration of Human Rights, G.A. Res.217A (III), U.N. GAOR, 3rd Sess, pt. 1, at 71, U.N. Doc.  A/810 (1948)(art. 20(1); art. 23(4).

[17] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, Article 22.

[18] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, Article 8.

[19] American Convention of Human Rights, OAS Official Records, OEA/Ser.A/16 (English), T.S. No 36 (Nov. 7-22, 1969), Article 16.

[20]O.A.S. Treaty Series No. 69 (1988), entered into force November 16, 1999, OEA/Ser.L.V.II.82 doc.6 rev.1 at 67 (1992),  Article 8(a)(1) & (2);  http://www.oas.org/juridico/english/treaties/a-52.html

[21] European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, T.T.S. No. 5 (entered into force, Sept. 3, 1953), Article 11.

[22] Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163, available at: https://www.refworld.org/docid/3ae6b3678.html %5Baccessed 19 February 2019], Articles 5 & 6.

[23] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 10, available at: https://www.refworld.org/docid/3ae6b3630.html %5Baccessed 19 February 2019]

[24]Jordan Free Trade Agreement, https://ustr.gov/trade-agreements/free-trade-agreements/jordan-fta

[25] See, e.g., Free Trade Agreement, US-Cent Am-Dom. Rep., Aug. 5,4, Hein’s No. KAV7157, available at http://www.ustr.gov/trade-agreement/free-grade-agreements/cafta-drdominican-republic-central-america-fta/final-text

[26]  http://law.missouri.edu/arbitrationinfo/2018/04/30/first-ever-labor-arbitration-ruling-cafta/; See, Paula Church Albertson and Lance Compa, Labour Rights and Trade Agreements in the Americas, in RESEARCH HANDBOOK ON TRANSNATIONAL LABOUR LAW, 474 (Adelle Blackett and Anne Trebilcock, eds., 2015).

[27] Also known as International Framework Agreements.

[28] Nikolaus Hammer, “International Framework Agreements in the Context of Global Production” in Cross-Border Social Dialogue and Agreements:  An Emerging Global Industrial Relations Framework (Konstantinos Papadakis ed., 2008).

[29]Joanne Bauer, The Coalition of Immokalee Workers and the Campaign for Fair Food:  the Evolution of a Business and Human Rights Campaign, in BUSINESS AND HUMAN RIGHTS: FROM PRINCIPLES TO PRACTICE, Section 4.7 (Dorothée Baumann-Pauly and Justine Nolan, eds, 2016).

[30] See, e.g., Workers Rights Consortium Model Code of Conduct:  https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1003&context=codes; The Designated Suppliers Program:  https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgiarticle=1204&context=globaldocs

[31] OECD Guidelines for Multinational Enterprises, rev. May 2011 (Paris: Organisation of Economic Cooperation and Development, 25 May 2011), available at http://www.oecd.org/corporate/mne/1922428.pdf

[32] U.N. Global Compact, available at https://www.unglobalcompact.org/.

[33] “Inter-American Court Recognizes the Elevated Status of Trade Unions, Rejects Standing of Corporations,” International Labor Rights Case Law, vol. 3, no. 1 (2017).

[34] Steven Greenhouse, Michigan is the Latest University to End a Licensing Deal with an Apparel Maker,  New York Times, February 23, 2009, available at  https://www.nytimes.com/2009/02/24/business/24sweat.html; See Business & Human Rights Resource Center, USA: Universities end contracts with Russell Athletic over Honduras labour rights concerns – company says will improve compliance, available at https://www.business-humanrights.org/en/usa-universities-end-contracts-with-russell-athletic-over-honduras-labour-rights-concerns-company-says-will-improve-compliance.

[35] Report of the UN Special Rapporteur on Freedom of Peaceful Assembly and of Association, U.N. Doc. A/71/150 (2016), http://freeassembly.net/wp-content/uploads/2016/10/A.71.385_E.pdf.

[36] ILO Normlex Report in which the committee request to be kept informed of development, Report No. 332, November 2003, Case No 2227 (United States)—Complaint date:  18-)ct-02—Closed,  available at  https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2907332.