Activism is one of the forces currently contributing to regulation of social rights, through the socially transformative capacity of conflict. Understanding the impact of conflict on legal and regulatory outcomes is crucial to making sense of scholarly debate, including the literature on how the combination of law and law-making jurisprudence create models to regulate social rights. The debate on this topic is inextricably linked to various understandings of democracy and analyses of the construction of countervailing powers. Protest in Spain, in the context of the country’s multidimensional crisis, provides an opportunity to examine cases in which protest can elicit results affecting regulations imposed by programs of austerity. Spanish activists have attempted to alter the regulatory – or deregulatory – impact of the austerity agenda through an array of strategies, including not only demonstrations and strikes but also recourse to the courts at both national and supranational levels. The openness of power holders, or lack thereof, in the face of the voices of protesters is an important determinant, framing the strategies of activists and their impact on regulation. Yet the strategic range of forms of activism adopted in Spain has permitted activists to bypass the initial disinterest of power holders in the views of protesters and strikers. One reason for this proliferation of strategies is the presence of restraints on strike action. The combination of diverse activist strategies has achieved some of the movement’s goals, including important objectives such as new housing policies or public health care. The interaction between protest and litigation and their combined power to affect political outcomes is an essential consideration for theorists of regulation, not only in the context of labour, but throughout the broader regulatory landscape.
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Recent studies on developing countries suggest that globalization may strengthen or weaken labour rights depending on a variety of international, domestic, and regional factors. There has been a convergence of weakened respect for human rights in Mexico and Central America, for example, where exports are heavily oriented toward the United States and international subcontracting has predominated. The various, costly efforts to resist this deterioration all failed. This chapter argues that adopting human-rights-based labour policies can represent an effective means to safeguard human rights in the region, despite limits to the strategy. The strategy centres on identifying and overcoming structural obstacles to the vindication of human rights. The strength of this approach is that it takes into account international human rights law as accepted by the international community, that it contributes to articulating the obligations of the state in relation to those rights, that it includes a coherent system of principles and rules, and above all that it offers a guide to participation by social actors in the process of cooperation and assistance as well as in the evaluation of their results. Mexico and the Central American countries each have similar legal contexts, but, in retrospect, there were important flaws in the design, monitoring, and implementation of the attempted labour protections: the policy was not based on a shared diagnostic analysis, nor did it involve the participation of actors with relatively symmetrical bargaining power. Moreover, labour policies were not articulated with other sectoral policies to promote the creation of quality jobs. Rather, they were subordinated to macroeconomic policy goals and competition strategies that worked to undermine any possibility of giving teeth to workers’ rights.
Action aimed at abolishing child labour has had significant results in many countries. While this has permitted a reduction in the number of working children globally, the ILO still sees the persistence of child labour as part of development failures. In Africa, while these efforts have exposed the extent of the phenomenon, they have not been able to eradicate poverty (with the international community having moved from the concept of its eradication to its alleviation) or to put a stop to the privatization or the weakening of the State. Since initiatives to eliminate child labour have been designed essentially along two axes – regulation of work by children and free and compulsory instruction – their scope has been mitigated. At the same time, however, they have shed light on the key role of the State as a true actor in the fight against child labour and the achievement of sustainable development. This leads to two observations. First, poverty cannot justify putting children to work. Second, international action against child labour should, on the one hand, ensure the participation of children and on the other hand, integrate the need for the State as well as its consolidation as an actor for development. Without tackling the root causes of exploitative child labour, the fight to eliminate it remains unlikely to succeed.
China has a paradoxical place in contemporary labour law. At times it has been the bête noire of labour scholars, combining the worst excesses of raw capitalism with political authoritarianism; its workers abused, exploited and voiceless. Worse still, it has been accused of lowering working conditions internationally, through competitive pressures or even directly in its offshore employment practices. On the other hand, China stands out from many countries with declining labour market institutions by its recent vigorous pursuit of formalization, enforcement, and collective negotiation, apparently (as yet) without major adverse labour market consequences. Progressive labour law reform is a matter of keen political and scholarly interest and increasingly sophisticated debate. Many new measures are innovative and based on multiple regional experiments. These circumstances suggest that the country could be a site for the successful production of new legal norms, which may be transferrable to other jurisdictions. China’s ambiguous contribution to transnational labour law reflects the distinctive internal dynamics of its recent economic and political history, such as the pursuit of social stability through the deployment of pervasive party-state controls. This chapter reviews the interaction between key stages of China’s labour law evolution and external developments. It does not chart the emergence of a definitive ‘China model’ of work law but rather describes certain striking initiatives based on a distinctive approach to the production of labour regulation. It examines the ways in which developments in China have affected – and have the potential to affect – debates on labour norms in other countries.
Rose-Marie Belle Antoine
Article 26 of the American Convention on Human Rights requires member states to progressively implement the broad economic, social, and cultural (ESC) rights that are implicit in the Charter of the Organisation of American States (OAS). The Inter_American Court of Human Rights (IACHR) has identified these implicit OAS Charter ESC rights as extending to labour rights, and IACHR jurisprudence has held that ESC rights overlap with civil and political rights as a means to overcome that ESC rights were otherwise non-justiciable. The rights at this intersection include prohibitions on discrimination, as well as access to justice and due process in the labour context. One of the mechanisms that has emerged to assist in concretising ESC rights is the San Salvador Protocol, which includes labour rights and an extensive range of obligations, both positive and negative, immediate and incremental. Some labour rights, such as the right to associate—which has an independent explicit basis in the convention—and the right to work have received robust protection within the Inter-American system, but there has been much greater reluctance to push into areas such as a right to strike and in protecting cuts to salaries and pensions, even when these protections have a basis in normative texts within the system. This reluctance may signal that the progressive entrenchment of ESC rights in the Inter-American system operates only at general and abstract level, with little effect in concrete, individual cases.
Over recent decades, transnational firms have moved toward financial concentration on the one hand, and toward decentralization of production on the other. The effect has been that a greater portion of these firms’ workers are beyond the reach of positive labour law, while the firms themselves are even more powerful. In this context, the notion of corporate social responsibility has emerged, simultaneously providing opportunities to defend workers’ rights, while also presenting disadvantages and challenges for transnational labour law (TLL). Socially responsible corporate governance can helpfully link transnational firms to working conditions prevailing across their production chain, by establishing new forums for participation—through shareholder engagement, at the transnational level, and through new channels such as consumer law, corporate law, and even banking law—and enhancing the visibility of the core ILO Conventions, whose working condition standards have been incorporated into key corporate social responsibility instruments. It is nevertheless important for TLL to preserve what sets it apart, such as its focus on collective action, as socially responsible corporate governance also entails disadvantages for workers. The three major disadvantages of the approach are its focus on the maximization of shareholder value, its conception of workers as merely one among many sets of “stakeholders” that firms must take into account, and its enhancement of the power not of workers, but rather of shareholders and directors. These actors gain increased legitimacy as the best defenders of stakeholders, while the implementation of codes of conduct can increase a firm’s hold over workers across the production chain and undermine the actions of local unions. It is thus essential that TLL preserve an unshakeable focus on worker protection, as only such a focus will enable it to avoid being co-opted by socially responsible corporate governance.
Myanmar/Forced Labour is the most famous and fully litigated case in ILO legal history. Though Myanmar itself is rife with complexity, the facts and law in this case were straightforward: the country had a well-documented history of forced labour abuses on a massive scale, organized and directed by the authoritarian military regime despite ratification in 1955 of the ILO’s most important Convention prohibiting forced labour, Convention No. 29. The Commission found ‘a widespread and systematic’ violation and invoked Article 33 of the ILO Constitution. But a hint that the case involved something more interesting is that it was, astonishingly, the first and only case since the ILO’s founding in 1919 in which the ILO legal machinery was ever fully deployed. This hard-to-digest fact cannot be explained away by believing that there was hitherto universal compliance in the 185 member States in relation to almost several hundred Conventions. What looked like the ‘most normal and easiest’ of cases turns out to be a remarkable exception: it allows an examination of some commonplace ideas about broader ILO law, and suggests that ‘doing nothing’ can itself constitute a ‘curious incident.’ And although Article 33 was invoked, there were no real ILO sanctions: even in the case of a politically easy target, a ‘pariah’ state committing what the Commission of Inquiry regarded as a ‘crime against humanity,’ the ILO did not ultimately utilize the standard model of law enforcement set out in the ILO Constitution. It is thus hard to imagine a case in which it would be. The ILO is an institution which is based upon a ‘gamble on persuasion,’ and the Article 33 ‘bluff’ has now been called.
Laurence Boisson de Chazournes
A ‘dialogic’ approach, characterized by the involvement of various non-State actors in decision-making processes, is becoming increasingly prevalent in different areas of international law. Important parallels exist between transnational labour law, emphasizing social dialogue, with the dialogic approaches that have emerged in other fields of international law. The tripartism of the International Labour Organization (ILO), for example, is an important feature. But the dialogic approach is also evident in the public participation guarantees in international environmental law, which are also continually developed through the ILO’s Indigenous and Tribal Peoples Convention 1989 (No 169), the UN Declaration on the Rights of Indigenous Peoples (2007), the Rio Declaration on Environment and Development of 1992, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’), and the African Convention on the Conservation of Nature and Natural Resources adopted under the aegis of the African Union. International human rights law has similarly begun to require that indigenous populations be consulted when they are affected by works related to natural resources such as, for example, in the Inter-American Commission on Human Rights’ Belo Monte Dam case, the Endorois Welfare Council v Kenya case, through impact assessment procedures, and in Tătar v Romania. Social responsibility mechanisms, although they should not be perceived as convenient means of averting traditional obligations, have also promoted the approach, especially the Global Compact. The predominant challenge for dialogic approaches is in their legitimacy, which can be bolstered through attentiveness to the principles of inclusiveness, transparency, public participation and access to information.
The Organisation for Economic Co-operation and Development (OECD) has not traditionally been perceived as a major actor in international labour law or—for that matter—in any other field. But the OECD and the ILO have had cooperative agreements dating back to the 1950s, updated most recently in 2011, and have prepared joint statements stressing the importance of job creation to G20 meetings of Leaders and of Labour and Employment Ministers. Despite that the OECD’s lack of coercive tools, such as the IMF’s conditionality mechanism, OECD initiatives nonetheless have the capacity to add weight to ILO efforts to guarantee core labour standards, both by lending them external legitimacy, and through independent pressure from the OECD. This chapter explores some illustrations of this potential. First, accession was used the case of South Korea to make South Korea’s OECD membership conditional on it showing greater respect for freedom of association. Second, the OECD Declaration and Recommendation for the Employment of Women now emphasizes the importance of closing the earnings gap between men and women, and explicitly refers to the ILO Equal Remuneration Convention. Third, the OECD Guidelines for Multinational Enterprises, adopted in 1976 and updated most recently in 2011, contain recommendations that provide the foundation for corporate social responsibility. The Guidelines explicitly render homage to the work of the ILO and line up behind its authority while reaffirming its relevance. Governments accepting the Guidelines must establish National Contact Points tasked with promoting the Principles and handling issues raised publicly relating to alleged non-implementation. As of now it seems fairly clear that the OECD is following in the ILO’s wake rather than competing with it, and that the OECD intends to allow ILO standards to acquire still greater authority.