Who Defines the Meaning of Human Rights at Work? the UN Global Compact and the ILO Declaration

Who Defines the Meaning of Human Rights at Work?

1Introduction

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 determiningthe 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’sGuiding principles on business and human rights, the Organization for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprisesas 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 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.

2Globalization and Workers’ Rights as Human Rights

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 a shared view of working conditions that in many low wage, export-oriented countries, employersdenied 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 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.

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 conventions[15] 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

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 required[20] 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 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 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.