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Topic 3:International

and European Context


Lecture 8

Human Rights, Labour Rights and


Standards and the ILO

8.1

General and Historical Overview


we will provide an overview of the various
international sources of labour rights and
standards and of the historical context in
which they have developed.

8.2

Rights Relevant to Labour Law


we look in more detail at the sorts of human
rights guaranteed at the international level
that apply in the field of labour law

8.3

The International Labour Organization


we examine one of the critical international
agencies operating in the field of labour
rights and standards. In particular, we
clarify its essential structural features and
how it is capable of responding to the
challenges posed by the global economy to
the integrity and scope of workers rights
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Targeted Reading

F. Maupain, New Foundation or New


Faade? The ILO and the 2008
Declaration on Social Justice for a Fair
Globalization (2009) 20:3 European
Journal of International Law 823
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8.1

General and Historical


Overview

Human rights protection largely evolved within


the context of certain national legal orders

The international protection of human rights was


slow to develop because of the principle of state
sovereignty

In labour law, international development of labour


law standards began in 1919 with the setting up
of the International Labour Office
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The main impetus to the


development of modern
international human rights
law was the experiences of
the 2nd World War

Given the symbolic


importance of human rights,
deploying international
human rights law to protect
labour standards seems a
useful way of providing a
regulatory response to the
mobility of firms and capital

In 1948 the UN General Assembly adopted the UN Declaration of Human


Rights containing a statement of civil and political and social and
economic rights

Subsequent instruments produced in 1966:-

The International Covenant on Civil


and Political Rights (1967) 999
UNTS 171

The International Covenant on


Economic, Social and Cultural
Rights (1967) 993 UNTS 3
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This marked a split between civil and political rights and socioeconomic rights

Certain labour law rights like the right to freedom of association


fall into the first category

Others, like the right to a fair wage would fall into the second
category
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socioeconomic

less
categorical

The distinction is important because the implementation of


socio-economic rights is often more difficult

Rights such as socio-economic rights give rise to


obligations in these international instruments that are
relatively less categorical

States are required to progressively attain these rights


states
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Socio-economic rights are


implemented by a wide range of
government policies. Where
there is a shortage of funds,
priority may have to be
assigned

funds

Should the courts


make this type of
decision?

Court
s?

I LO
UN
agenc
y

In relation to Labour Law the


International Labour Organization
became established as a special
agency of the UN.
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At the European
level, 1950 marked
the creation of the
European
Convention of
Human Rights (civil
and political rights
only)

1961 saw the


promulgation of the
European Social
Charter.

Both instruments
promulgated under
the auspices of the
Council of Europe
(a completely
different
organization from
the EU).

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The EU has also


acquired a human
rights profile

Initially, it was limited


to establishing a
framework for the
operation of the free
market

Gradually, the European


Court of Justice created a
number of human rights
limitations on the activities of
EU institutions and its
member states
In 2000, the Charter of
Fundamental Rights was
proclaimed as a non-binding
statement of civil and political and
socio-economic rights. As a
result of the Lisbon Treaty

in so far as they are


implementing EU law.

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8.2

Rights Relevant to Labour Law

8.2.1

Civil and Political Rights

8.21

Socio-Economic Rights

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8.2

Civil and Political Rights

Freedom of
Association
The two relevant rights
are the right not to be
discriminated against
and the right to freedom
of association

Guarantee
The UN Declaration
contains a guarantee of
the right to freedom of
association (Art 23(4));
the ICCPR (Art 22) and
the ECHR (Art 11).

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disconnected
The right to freedom of
association is the right to
leave as well as the right to
join a trade union for
example

The right of join a trade


union

The right to freedom of


association is normally
disconnected from any
linked trade union rights
such as the right to strike
or the right to engage in
collective bargaining

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Art 26 of the ICCPR contains


a guarantee of the right not
to be discriminated against
as does the UN Declaration

The ECHR contains an antidiscrimination right in art 14


but only in relation to the
rights contained in the
ECHR. Protocol 12, when it
comes into effect, will contain
a broader anti-discrimination
right.

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8.2.2
The various
socioeconomic
human rights
instruments
usually
contain the
following
rights
guarantees:-

Socio-Economic Rights

1.The right to join a Union

2.The right to strike


3.The right to work
4.The right to a fair wage; eg, art 23(3) of the UN
Declaration

5.The right to fair conditions of work art 2 of the ESC


guarantees a right to paid leave and a right to limitations on
working time; art.3 contains a right to a safe working
environment.
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Art. 6 of the ESC


requires
governments to
promote collective
bargaining and
consultation

Art 24 of the revised ESC


(1996) requires states to
protect workers against
arbitrary dismissal and to
ensure that any worker who is
so dismissed will receive
compensation

Art 26 contains a
right to dignity at
work applies to
sexual harassment
and bullying

The ESC contains a


right to maternity
leave art 8 this
has been qualified by
the 1996 amendment

The ESC also


contains rights
relating to
information and
consultation

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8.3

The International Labour


Organization

8.3.1

Basic Institutional Structure

8.3.2

Challenges to the ILO

8.3.3

The Debate over the Future of


the ILO

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The ILO is the key specialist international body


concerned with the promotion of workers rights
and fundamental labour standards

According to Francis Maupain, a former legal


Counsel of the ILO and an adviser to the
Director General, the two key features of the
ILO are its tripartite structure and its reliance of
persuasion.

These two features are explained in what


follows

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3 Institutions
The ILO
consists of
three principal
institutions: the
International
Labour
Conference
(ILC), the
Governing
Body and the
International
Labour Office

Annual
The
International
Labour
Conference
normally
meets once a
year

Composition
It consists of
delegates
from Member
States
consisting of
two
government
representative
s and a
representative
each of
employers
and workers
associations
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This is the first key


feature of the ILO: it is
a tripartite institution

The ILC adopt


Conventions

Member states
individually ratify
these conventions

The States are then


required to take such
action as may be
necessary to make
effective its
provisions

Although it is open to
member states to
denounce a
Convention which
they have previously
adopted

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The ILO then monitors compliance with the instrument but


crucially it does not have any significant powers of enforcement

The monitoring system is based on a regular system of reports


drawn up by the States themselves and a State might also be
investigated following a complaint

This feature of the way in which the ILO operates indicates


another key feature: its reliance on persuasion.
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8.3.3

The Debate over the Future of


the ILO

The first model is most


straightforward to articulate, but
perhaps in practice is the most
difficult to realize
Given the challenges the ILO
faces in promoting labour
standards, different models and
suggestions have been
advanced for shaping its future
role

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This first model is


clearly presented in
Phillip Alstons work on
the ILO

According to this
approach

Significant reforms are


needed to strengthen
the ILOs enforcement
mechanisms

Adequate funding
provided to realize the
commitment to
workers rights

Essentially, with
increased funding and
more enforcement
powers
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The ILO would be


able to supervise
and coerce
recalcitrant states
into compliance
with its standards
and to mobilize
domestic
constituencies to
vindicate their
rights

This model has


been criticised
from a number of
different
perspectives

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1 on the grounds that


the ILOs weak
enforcement mitigates
against that role
Langaille
disputes the
soundness of this
assumption

2 on the grounds that


market freedoms and
social rights are
compatible because
both enhance human
freedom

It is therefore in
states interests
to pursue market
building and
social policies
simultaneously

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At the same time,


Langilles
argument also
seems to be
underpinned by

The idea of
tripartite
organization which
stresses the
importance of
procedural rights
associated with
collective
bargaining in
improving labour
standards

of procedural rights

persuasive function

Langille
accordingly
supports a model
of the ILO which
stresses its
persuasive
function and the
fact that it must
work with states to
promote
consensus on
labour standards

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Alston has in turn


replied to
Langailles
arguments
criticizing the
model he supports
by stating that

It should be
noted that these
are nevertheless
two distinct
functions

He disagrees
with the way in
which Langaille
presents his
views of the
older ILO system

Also had a role


to play in the
empowerment
and mobilization
of constituencies
within states
seeking to
promote labour
rights

Alston stresses that


the ILO system is
not simply about
enforcing rights
against recalcitrant
states

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In turn Alston
criticizes
Langilles view of
the ILO

He rejects Langilles
argument used to
support the current
arrangements on the
grounds that there is no
reason to think that
promoting social rights is
necessarily in individual
states self-interest.

Alston also
argues that
Langilles faith in
the pragmatic
capability of the
Declarations
process centred
rights is also
overstated

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Francis Maupain

A final model for the


future development
of the ILO is one
which we can link
with the work of
Francis Maupain

The Persuasive
Function
Maupain shares
Langilles adherence
to the persuasive
functions of the ILO
and its adherence to
the tripartite model
both in its own
internal structures
and in terms of the
rights it seeks to
vindicate

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The main point he makes is that there seems to be very little


likelihood that trade rights will in general be made conditional
on respect for labour standards

He does indicate that there may be some room for states

Under various provisions of the General Agreement on Tariffs


and Trade, to introduce labour standards-related
conditionalities
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Certification

1 Ultimately, Maupain thinks that this will only place limited


pressure on states to promote labour standards and
further that they may only be of benefit to workers in export
industries
2 Maupains most innovative proposal, and the one that he
believes has the greatest chance of achieving the
promotional goals of the ILO in relation to labour standards

3 Is that of introducing a compliance with labour standards


certificate for states

4 This certificate could then be used by the countrys


exporters to promote their products with consumers as
there seems to be considerable evidence that consumers
are willing to pay a premium on products produced in
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accordance with ethical norms