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

by

Janice R. BellaceSamuel Blank Professor of Legal Studies and

Professor of ManagementThe Wharton School - University of Pennsylvania

Philadelphia, PA 19104-6340USA

Tel +1-215-898-6820Fax +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 requires certain behaviors of those in its jurisdiction. This paper will conclude that companies 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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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.

2 Globalization 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

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 MICH. J. INT’L L. 183, at 216, 286 (1997)

6 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-BURTON, FORCED TO BE GOOD: WHY TRADE AGREEMENTS BOOST HUMAN RIGHTS (2009). See also Kevin Kolben, The WTO Distraction, 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

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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 ILO and other international organizations as the means for heightening the effectiveness of existing instruments in influencing companies to observe workers’ rights.

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 38-39.

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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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

11 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.

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.

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.

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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

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

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.

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

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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 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

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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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.

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-and-recommendations/lang--en/index.htm

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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 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

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).

29 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.

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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 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

30 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.

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

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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 “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

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

39 http://www.unglobalcompact.org/HowToParticipate/Business_Participation/index.html

40 http://www.unglobalcompact.org/HowToParticipate/index.html

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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’ 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

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.

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.

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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 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 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.html46 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,

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“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.

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, pages 6 -27. Accessible at http://www.ohchr.org/Documents/Issues/Business/A-HRC-17-31_AEV.pdf

47 Id., page 3. 48 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.

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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 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.

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.sa-intl.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.

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.

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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 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

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.

56 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.

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.

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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.

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

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.

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.

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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 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 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.

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).

68 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

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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 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

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

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).

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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 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

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.

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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 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

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.

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.

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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 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 78 Id.

79 Id.

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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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