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Core Labor Standards & the Transformation of the Int'l Labor Rights Regime

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Abstract

The past decade has seeen a transformation of the international labour rights regime based primarily on the adoption of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, and the widespread use of the concept of ‘core labour standards’. Notwithstanding the enthusiasm which has greeted these innovations, it is argued that the resulting regime has major potential flaws, including: an excesssive reliance on principles rather than rights, a system which invokes principles that are delinked from the corresponding standards and are thus effectively undefined, an ethos of voluntarism in relation to implementation and enforcement, an unstructured and unaccountable decentralization of responsibility, and a willingness to accept soft ‘promotionalism’ as the bottom line. The regime needs urgent reforms, such as anchoring the principles firmly in the relevant ILO standards, giving greater substance to the Follow-up mechanism, extending monitoring under the Declaration to include an empirical overview of practice under the bilateral and regional mechanisms which have invoked ILO principles and the Declaration itself, and adequately funding the commitment to workers’ rights.

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... It is important to note that a large literature attests that IOs are not the only influential actors in the field of global labor standards (Hendrickx et al. 2016;Hassel 2008;Hassel et al. 2008;Alston 2004). Multistakeholder initiatives, multinational corporations, international unions, NGOs and grassroots movements have become important actors, particularly when it comes to implementation, control and enforcement (see e.g. ...
... The literature agrees on the fact that the introduction of the CLS in 1998 marks a watershed (Alston 2004;Alston 2005;Langille 2005;Maupain 2005;Standing 2008). However, there is sharp disagreement about whether they represent an upgrading or downgrading of labor standards in the international regime. ...
... Numerous authors have argued that the CLS reflect a defeat of labor interests because they focus on a smaller group of rights at the expense of the much broader body of labor standards covered by the conventions, thus marking a very significant departure from the approach that all human rights are equally important (see e.g. Alston 2004Alston , 2005. There are, however, also a number of voices arguing that the CLS were an adequate response to the increasing dominance of trade liberalization and neoliberalism in national and international institutions. ...
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... Principles and Rights at Work and the core labour standards which is considered a new international labour rights regime of soft law (Alston, 2004). This approach has its supporters and detractors. ...
... This approach has its supporters and detractors. Support has been given on the basis that this approach introduces flexibility in the labour standards regime in allowing the core standards to apply to diverse situations outside the confines of the conventions to which they belong (Alston, 2004). Others see the notion of core standards as the ILO stepping back from standard setting and creating a hierarchy of standards to the detriment of others (Alston, 2004). ...
... Support has been given on the basis that this approach introduces flexibility in the labour standards regime in allowing the core standards to apply to diverse situations outside the confines of the conventions to which they belong (Alston, 2004). Others see the notion of core standards as the ILO stepping back from standard setting and creating a hierarchy of standards to the detriment of others (Alston, 2004). In other words, the decent work agenda is seen as a compromise by the ILO in light of criticisms of its failure to implement firm standards to impact working conditions in the advent of economic globalization (Standing, 2008). ...
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... Together these form the cornerstone of many labor governance initiatives, including the Better Work Program of the ILO and the International Framework Agreements signed by global unions and corporations. Reliance on such core labor standards is part of a wider erosion of the ILO's ability to regulate work in a globalizing economy (Alston 2004;Standing 2008;Hauf 2015), while such standards are also noted for their gender blindness (Kabeer 2004;Elias 2007). As we show, further problems are found insofar as core labor standards, even when mandated through a legally binding trade agreement, fail to articulate the most pressing issues in export-oriented production networks arising from the structural inequalities in GPNs. ...
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To what extent do labour rights promote freedom in relation to work? Methodologically, the article defines three freedoms: 'freedom at work', 'freedom through work', and 'freedom from work'. It shows that fundamental labour rights have traditionally aimed at protecting workers in the labour market, not at expanding freedoms and in particular freedom 'from' work. In this respect, it outlines some limits of current proposals relying on productivity and redistribution, such as the basic income, to liberate from work. Beyond these proposals, the article develops new rights in the human economy framework. The article concludes that, in order to expand freedoms in relation to work, not fewer but more fundamental labour rights will be required.
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This analysis investigates changing mobilization at the ILO in response to the labour and social rights shock created by EU and IMF demands in the EU sovereign debt crisis (Crisis Europe or euro-crisis). Mobilization means the purposeful use of legal norms and institutions by social movements and civil society groups to advance identified policy goals. It can be contrasted with the use of legal norms and institutions by individuals or entities to settle disputes affecting them. After introducing relevant features of euro-crisis and the ILO, the article develops an analysis that measures changing mobilization at the ILO during euro-crisis. It then shows how such an analysis makes two key contributions: first, to our understanding of the ILO and, second, to how we approach mobilization. First, by viewing the ILO as a rights mobilization structure, it shows the vitality and interest of doubted or neglected ILO supervision and complaints mechanisms. Five elements are underlined: the ILO is more than existing literature assumes; it questions the depiction of the ILO as a ‘toothless tiger’; the sharp divide between unions and NGOs is overstated; certain institutional design features make the ILO a good venue for transnational mobilization; the ILO is not transparent in terms of access to documents relevant to mobilization and compares poorly in this respect with UN Human Rights Treaty Bodies. Second, by setting it against existing literature, it is shown how measuring mobilization is distinctive within the broader human rights mobilization scholarship. The most important insights it introduces are: rejecting the assumption that mobilization inevitably follows a significant rights shock such as euro-crisis; addressing the puzzles of union ‘mobilization’ and motivation; operationalizing measurement of mobilization against the backdrop of venue choices; considering how to deal with an international organization which is both a mobilization venue and an engaged actor.
Article
Résumé Des observations sur la manière dont le droit de l'Union européenne fait place aux instruments destinés à assurer la protection des travailleurs élaborés à l'échelle internationale ou à l'action des organisations internationales pour la protection des droits sociaux, cette contribution tire une typologie destinée à mettre au jour les liens, souvent tenus mais d'une grande diversité, qui rattachent le droit européen au «droit international du travail», au sens large.
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In the past decade the European Union (EU) has been at the forefront of attempts to strengthen and promote the social dimension of globalization, focusing chiefly on the promotion of labour standards internationally, through increased cooperation with the International Labour Organization (ILO) and through its external trade policies.
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Providing a radical new approach to labour migration, this book challenges the prevailing legal and political construction of the figure of the irregular migrant labourer, whilst at the same time reimagining this irregularity as the basis of an alternative, post-capitalist, sociality. The text draws on the work of contemporary philosopher Jean-Luc Nancy, and more specifically his term 'ecotechnics', in order to examine how economic, political and juridical norms deny the full legal status of certain people who are deemed to be irregular. This ostensible irregularity is revealed as a regular feature of labour market practice, and a necessary support for the conceptual foundations of capitalist legality. As this book shows, however, this legality - and with it, the technological subordination of life to the circulation of capital as if this were the only possibility for our being in the world - is not insurmountable. The book's consideration of the figure of the irregular migrant labourer comes to provide an alternative basis for reimagining our relationship not only to migration and to labour itself, but ultimately to each other. This powerful analysis of contemporary labour migration is of considerable interest to legal and political theorists, philosophers, labour lawyers, migration experts, and others with theoretical, political or policy interests in this area.
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This article aims to review the passages of a relevant part of the bibliography of Boaventura de Sousa Santos dedicated to examining the modern trajectory of labor regulation and the syndicalism crisis within the analytical framework of social exclusion, systematizing its critical arguments and utopian propositions on both themes.
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Labour regulation is often approached either by methodological nationalism or methodological globalism. Main arguments are that labour and its regulation are increasingly dis-embedded and commodified. As an alternative framing we propose a (neo-)institutionalist multi-level and multi-actors approach. Based on literature review and own studies we argue that there is empirical evidence of transnational labour regulation combining different logics of action and institutional contexts. Taking the example of the Bangladesh Accord on Fire and Building Safety, we demonstrate the multi-level, multi-dimensional institutional settings and sketch out basic elements of an integrative perspective on sewing transnational textures of labour regulation. Key terms Labour regulation, globalization, transnationalization, Bangladesh Accord, neo-institutionalism, multi-level multi-actor approach.
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This essay traces over time the tripartite International Labour Organization’s mission and means of action as they relate to international economic law since its founding in 1919. The article highlights key markers along the road to social justice, from the ILO’s constitutional origins to major Declarations (on the ILO’s mission and purpose, on fundamental principles and rights at work, and on decent work and social justice) to the recent ILO Centenary Initiatives. The interplay between the ILO’s work and that of international financial institutions as well as developments in areas such as green jobs in response to climate change, and business and human rights, are briefly explored. Lamenting the largely (and unnecessarily) divergent paths taken by international economic law and transnational labour law, the article identifies several possible avenues to bring them closer: techniques of general international law, use of opportunities created by the 2030 Sustainable Development Agenda, and other ideas put forward by various observers on how the ILO—with its stress on social dialogue—can, in partnership with other multilateral institutions, be more effective to achieve decent work for all on a sustainable planet.
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The field of business and human rights has recently seen many seminal developments in the creation of national and international binding and soft law standards in order to protect human dignity of rights holders. This article revisits the function, role and scope of the 2017 version of the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. It asks if there is a need for its reform? It first provides in Sect. 2 a brief historical background and explore the its legal nature. Section 3 examines the contents of the revised Tripartite Declaration focusing on labour and/or human rights provisions thereby providing a critical account of provisions included or omitted. Section 4, thereafter, describes and critically analyses its implementation tools from promotion to interpretation procedure and provides a critical assessment of their usefulness for rights-holders. Equipped with the knowledge from previous sections, Sect. 5 thereafter provides an overall analysis and assessment of the recent revisions of the ILO Tripartite Declaration outlining both its advantages and disadvantages; places it in the wider context of standard-setting in business and human rights and provides some suggestions how to reform it and to better realize its potential. This article, therefore, argues that the ILO Governing Body should rephrase the vague and conditional language of the Tripartite Declaration and improve its implementation tools, particularly the interpretation procedures by opening it to individual claimants. In this way, it would emancipate the rights-holders to enforce the core labour rights included in the Declaration against adverse corporate conduct.
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Labour provisions are an increasingly regular component of preferential trade agreements (PTAs). The overall goal of these provisions is to enhance the protection and promotion of labour standards in the context of trade and investment liberalization by creating trade-labour and investment-labour linkages within the PTA. This chapter examines the scope and content of contemporary trade-labour and investment-labour linkages in some of the major latest-generation PTAs, analyzing both substantive provisions and institutional mechanisms for their implementation.
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The duty to consult with Indigenous peoples in the context of extractive or other development activities impacting on their rights and well-being is clearly established in Canadian and US law and policy, albeit differently in each jurisdiction. In both jurisdictions, however, ambiguity remains regarding the nature of this duty to consult, including the degree to which Indigenous peoples’ interests must be accommodated and the circumstances under which their consent may be required in the context of extractive industry projects. In order to fully appreciate the meaning and potential of this recent “support” for Free, Prior and Informed Consent (FPIC) as articulated in the UN Declaration on the Rights of Indigenous Peoples, it is therefore necessary to examine the legal frameworks governing Indigenous peoples’ consultation and consent rights in these jurisdictions.
Chapter
The basic proposition of the chapter is that to appreciate better the impact of the present phase of globalization on labour rights in India, it is necessary to locate the analysis in the larger context of the labour rights regime as it evolved at the international level. The evolution of labour rights is linked to certain historic epochs in capitalist globalization. The earlier phases of development of capitalism (right from the mid-nineteenth century up to the end of the so-called Golden Age by late 1970s) witnessed a clear recognition and progressive consolidation towards constitutionalization of labour rights by strengthening the capacity of the ILO. The present phase of globalization not only witnessed radical reorganization of industry from the Fordist mass production to dismantling and geographically distributing the units of production through global production networks, but also softening of the labour rights regime at the international level by the 1998 Declaration of the ILO which is seen as moving towards voluntarism. In the light of these developments the chapter analyses the nature of integration of the Indian economy into the global economy, its impact on the quality of employment, the change by way of shift in the attitude of all the wings of the state and the dilution of regulatory machinery towards labour rights. The chapter traces several disturbing trends in the industrial relations system like weakened countervailing forces like unions, the growing pressure of capital for more and more flexibility in labour regulatory system, the eagerness of the states to appease capital, weakening of labour rights regime and so on. Given the voluntarism at the international level, the solution cannot but be mobilization of labour for assertion of their rights. The translation of ‘Decent Work’ and ‘Social Protection Floor’ through mobilization of labour cutting across formal-informal barrier holds some glimpses of hope.
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As evidenced by widely adopted international agreements, treaties and conventions, the law of nations encompasses core labor rights. This paper advocates for the use of the Alien Tort Claims Act as a way of raising international labor standards, while also acknowledging its limitations. Part I reviews the history of the ATCA and the developing jurisprudence in the international labor context, including recent and pending cases with employee ATCA claims against multinational corporations in the United States. Part II outlines what is necessary to plead an ATCA claim, including what is required to satisfy jurisdictional requirements, to state a claim under the law of nations and to hold corporations liable for violations of the law of nations. Part III details international foundations which can be used to support employee claims under the ATCA for: general labor rights; extrajudicial murder and genocide; torture, kidnapping, unlawful detention and degrading treatment; slavery and forced labor; freedom of association and collective bargaining; child labor; and discrimination, including treatment of women. Part IV addresses common legal challenges to ATCA claims: forum non conveniens; indispensable parties; the Foreign Sovereign Immunities Act and the Act of State Doctrine; and statute of limitations issues. Part V discusses remedies, including the potential shortcomings, available under the ATCA. This paper concludes that there is sufficient international consensus as evidenced by treaties, conventions, declarations, and resolutions to support ATCA worker-related claims, making this statute an important method of enforcing existing core labor rights
Article
Filing lawsuits in U.S. federal and state courts for workers' rights violations suffered by workers employed by American corporations abroad is one of several strategies for promoting labour rights. Other strategies include use of labour rights mechanisms in GSP laws, in regional trade agreements like NAFTA and Mercosur, in corporate codes of conduct, in the ILO and other venues. To succeed, such suits must first overcome the strong presumption against extraterritorial effect of U.S. law. Other jurisdictional hurdles like "inconvenient forum" also require caution in bringing suits. However, several cases using common law tort and contract theories as well as international human rights law have recovered substantial actual and punitive damages for workers of U.S. multinational companies in several developing countries. With the right strategic choices, labour rights litigation can be an effective means of advancing workers' rights in the global economy.
Article
Globalization poses many challenges to working people and their advocates. In light of the demands on the limited resources of United States unions and other labor advocates, it may seem folly to suggest an additional strategy for addressing the consequences of globalization. Yet there is a further method of advocacy, one that is relatively low-cost but could both advance the direct interests of some of the most exploited workers in this country and aid broader international labor rights initiatives: enforcement of international labor standards in the United States, particularly on behalf of immigrant workers. This Article outlines two specific strategies that labor advocates should consider incorporating into their existing efforts on behalf of working people in the United States. The first is federal litigation on behalf of immigrant workers for violations of international labor law, pursuant to the Alien Tort Claims Act. The second is challenging United States under-enforcement of existing labor rights and standards by invocation of the international consultative and arbitration processes established by the labor side-agreement to the North American Free Trade Agreement. Both strategies are worthy of consideration because they may further the campaign-specific goals of individual workers, unions, and other labor organizations, but also for the independent reason that each will compel United States judicial and executive-branch institutions to measure public and private domestic labor practices against international standards. Moreover, embracing either strategy may enable United States labor advocates to “lead by example” in taking international labor standards seriously and demanding that United States public and private institutions honor our nation's international obligations. This, in turn, may offer a potentially useful response to those who oppose further definition and development of international labor norms and who criticize the movement as concerned solely with protecting domestic labor markets in advanced industrial nations.
Pursuing International Labour Rights in US Courts 49, at 55. Wishnie, 'Immigrant Workers and the Domestic Enforcement of International Labor Rights', 4 U
  • Compa
Compa, 'Pursuing International Labour Rights in US Courts', 57 Industrial Relations (2002) 49, at 55. Wishnie, 'Immigrant Workers and the Domestic Enforcement of International Labor Rights', 4 U. Pa. J. Lab. & Emp. L. (2002) 529, at 533.
Employer Beware? Enforcing Transnational Labor Standards in the United States under the Alien Tort Claims Act) 311; and Pagnattaro, 'Enforcing International Labor Standards: The Potential of the Alien Tort Claims Act', 37 Vand
  • Adams Lien
Adams Lien, 'Employer Beware? Enforcing Transnational Labor Standards in the United States under the Alien Tort Claims Act', 6 J. Small & Emerging Bus. L. (2002) 311; and Pagnattaro, 'Enforcing International Labor Standards: The Potential of the Alien Tort Claims Act', 37 Vand. J. Transnat'l L. (2004) 203.
Art. 3. 193 Ibid., Art. 5. 194 Ibid., Annex 1. 270 Consolidated Text and Commentary, Negotiating Group on the MAI, Directorate for Financial, Fiscal and Enterprise Affairs
190 For the text of NAALC see http://www.naalc.org/english/agreement.shtml. 191 Ibid., Art. 2. 192 Ibid., Art. 3. 193 Ibid., Art. 5. 194 Ibid., Annex 1. 270 Consolidated Text and Commentary, Negotiating Group on the MAI, Directorate for Financial, Fiscal and Enterprise Affairs, Org. for Econ. Cooperation and Dev., OECD Doc. DAFFE/MAI(97)1/REV2 (14 May 1997).
Labour Rights Provisions in US Trade Law Aggressive Unilateralism
Alston, 'Labour Rights Provisions in US Trade Law: " Aggressive Unilateralism " ?', 15 Hum. Rts Q. (1993) 1
Toward a Green Multilateral Investment Framework: NAFTA and the Search for Models', 12 Georgetown Int'l Env'al L
  • Wickham
Wickham, 'Toward a Green Multilateral Investment Framework: NAFTA and the Search for Models', 12 Georgetown Int'l Env'al L. Rev. (2000) 617, at 643–644.
Section 301 of the Trade Act of 1974, as amended (19 USC. § 2411) Compliance with these standards in countries around the world is reported on every year by the US Department of State
See e.g. Section 301 of the Trade Act of 1974, as amended (19 USC. § 2411). Compliance with these standards in countries around the world is reported on every year by the US Department of State, Country Reports on Human Rights Practices 2003 (2004), Appendix B: Reporting on Worker Rights, available at http://www.state.gov/g/drl/rls/hrrpt/2003/29638.htm.
189 For an analysis of these debates see Andrias, 'Gender, Work, and the NAFTA Labor Side Agreement', 37 U
189 For an analysis of these debates see Andrias, 'Gender, Work, and the NAFTA Labor Side Agreement', 37 U. San Francisco L. Rev. (2003) 521, at 538–543.
Recognizing the case for a multilateral framework to secure transparent, stable and predictable conditions for long-term cross-border investment, particularly foreign direct investment
  • Wto Doha
  • Ministerial Declaration
  • Wto Doc
  • Wt
  • Min
273 Doha WTO Ministerial Declaration, WTO Doc. WT/MIN(01)/DEC/1, 20 November 2001, para. 20: 'Recognizing the case for a multilateral framework to secure transparent, stable and predictable conditions for long-term cross-border investment, particularly foreign direct investment, that will contribute to the expansion of trade...'.